A    TREATISE 


ON 


THE  AMERICAN  LAW 


OF 


REAL    PROPERTY. 


BY 

ExMORY   WASHBURN,  LL.D., 

BCSSEY   PROFESSOR  OF  LAW  IX  HARVARD  UNIVERSITY  ;  AUTHOR  OF  A  TRE.1  TISE 
OX  THE  AMERICAN  LAW  OF  EASEMENTS  AND   SERVITUDES. 


VOLUME   I. 


FOURTH    EDITION. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1876. 


r 


Entered  according  to  Act  of  Congress,  in  the  year  1860,  by 

EMORY    WASHBURN, 

In  the  Clerk's  Office  of  tlie  District  Court  for  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1864,  by 

EMORY    AVASHBURN, 

In  the  Clerli's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1868,  by 

EMORY    WASHBURX, 

In  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1876,  by 

EMORY    WASHBURN, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


CAMBRIDGE: 
PRESS    OF    JOHN    WILSON    AND    SON. 


TO    THE    HONORABLK 

JUSTICES   OF   THE    SUPREME    JUDICIAL   COURT 

OF  MASSACHUSETTS, 

TO    WHOSE    LABORS    I    AM    INDEBTED    FOR    SO    MUCH    OF    WHAT     IS 
VALUABLE    IN    THE    WORK,     I    DEDICATE    THIS    UNPRE- 
TENDING   EFFORT    TO    ELUCIDATE   A   DEPART- 
MENT  OF   AMERICAN  JURISPRUDENCE. 

In  doing  this,  I  desire  to  add  to  the  traditional  veneration 
for  this  Court  which  I  have  shared  in  common  with  the  peo- 
ple of  the  Commonwealth  an  expression  of  personal  respect 
for  its  members,  which  the  long  intercourse  into  which  I 
have  been  brought,  since  my  admission  to  its  bar,  has  served 
to  develop,  and  constantly  to  strengthen. 

Within  that  time,  every  one  of  its  members  has  been 
changed.  Men,  the  loved  and  the  honored,  have,  one  after 
another,  passed  away  in  the  fulness  of  their  fame,  and  others 
are  now  occupying  their  field  of  honorable  labor ;  but,  illus- 
trious as  are  the  names  that  stand  out  upon  its  records 
among  the  great  and  good  men  of  the  Commonwealth,  never 
have  its  laws  been  more  ably,  faithfully,  and  acceptably  ad- 
ministered than  by  those  who  now  occupy  these  seats  of 
justice. 

To  bear  my  humble  tribute  to  the  official  and  personal 
qualities  of  the  men  who  have,  in  this  field,  won  and  sus- 
tained the  united  respect  of  an  appreciative  public,  I  subscribe 
myself 

Their  obliged  and  obedient  servant, 

EMORY  WASHBURN. 
Cahbbidge,  July,  1860. 


aAQ.4  ^n 


PREFACE 


TO     THE     FOURTH     EDITION. 


To  carry  out  the  original  purpose  and  design  of  the  present 
work  renders  it  necessary  to  add  to  or  modify*  its  statements 
and  propositions,  from  time  to  time,  to  conform  to  the  growth 
and  progress  of  the  law.  It  was  intended  to  give  a  connected 
view  of  the  law  of  Real  Property  as  it  prevails  in  the  several 
States  and  under  the  Federal  government,  so  far  as  it  could 
be  regarded  American  in  its  character.  For  this  purpose,  it 
was  not  only  necessary  to  collect  and  collate  the  decisions  of 
the  State  and  Federal  courts,  but  to  make  liberal  reference 
to  English  reports  and  accredited  treatises,  and  from  these  to 
form,  so  far  as  might  be,  a  consistent  and  complete  system  of 
this  department  of  the  law. 

If  successfully  accomplished,  two  objects  would  be  attained : 
the  profession  and  the  student  would  be  supplied  with  a  work 
that  seemed  to  be  needed  for  use  ;  and  a  process  of  assimila- 
tion among  the  laws  of  the  different  States  would  thereby  be 
promoted,  and  the  bonds  of  union  between  them  gain  strength 
by  an  identity  of  domestic  institutions  and  popular  thought. 

Judging  from  the  manner  in  which  the  work  has  been  re- 
ferred to  by  the  various  courts,  it  is  believed  that  it  has  not 
wholly  failed  in  either  of  these  respects. 

Since  the  publication  of  the  last  edition,  some  two  thou- 
sand cases  have  been  decided  by  the  courts,  which  bear 
upon  the  subjects-matter  of  the  work,  by  which,  and  other 
causes,  changes  and  modifications  of  sufficient  magnitude  and 
importance  in  the  existing  rules  of  law  have  been  wrought 


VI  PREFACE   TO    THE   FOURTH    EDITION. 

to  call  for  an  effort  to  collect  and  embody  these  into  the  work 
as  it  had  already  been  given  to  the  public.  An  edition,  there- 
fore, which  should  embrace  these  cases,  seemed  to  be  a  neces- 
sity, and  has  accordingly  been  prepared.  Where  these  cases 
were  in  effect  a  re-statement  of  weil-considered  points  of  law, 
they  have  been  referred  to  simply  by  name.  But  to  such  of 
them  as  contained  new  points,  or  presented  a  principle  already 
familiar  in  an  original  or  more  elaborate  form,  have  been  as- 
signed a  more  extended  discussion  and  examination  ;  and,  in 
so  doing,  a  statement  of  the  facts  and  circumstances  of  par- 
ticular cases  has,  at  times,  been  adopted,  which  might,  perhaps, 
seem,  at  first  sight,  more  consistent  with  the  idea  of  a  digest 
than  a  summary  treatise.  Where  this  has  been  done,  it  has 
been  for  the  purposes  of  illustration  and  explanation. 

This  accumulation  of  cases  has  arisen,  in  no  small  degree, 
from  the  fact  that  the  laws  of  the  different  States  differ  essen- 
tially upon  many  subjects ;  and  it  is  often  as  important  to  cite 
cases  to  show,  that,  upon  a  given  point,  the  law  of  one  State 
is  not  like  that  of  another,  as  it  is  to  state  what  the  law  of 
the  former  State,  in  fact,  is.  In  this  way,  citations  have  often 
been  multiplied  upon  a  single  point,  beyond  what,  at  first 
thought,  might  seem  necessary  or  proper. 

In  the  matter  of  the  changes  wrought  by  the  legislation  of 
the  States,  new  statutes  are  so  frequent,  and  often  so  arbitrar}^, 
and  it  is,  at  times,  so  difficult  to  get  ready  access  to  them,  that, 
if  errors  in  this  respect  should  be  detected,  the  cause  ma}^  per- 
haps, be  accepted  as  an  excuse.  In  collecting  and  digesting 
the  cases  cited  fi-om  the  reports,  liberal  use,  so  far  as  they 
extend,  has  been  made  of  the  "  American  Reports,"  —  a  selec- 
tion made  by  Mr.  Isaac  Grant  Thompson  with  excellent  judg- 
ment and  discrimination  ;  while  an  earnest  effort  has  been 
made,  from  other  sources,  to  make  the  examination  and  colla- 
tion of  these  reasonably  complete. 

To  give  some  idea  of  the  topics  upon  which  new  or  sub- 
sidiary matter  will  be  found  in  the  following  pages,  there 
may  be  mentioned,  as  among  them,  homestead  exemption  ; 
when  and  how  far  tenants  may  deny  their  landlords'  titles  ; 
what  force  a  landlord  may  apply  in  expelling  a  tenant ;  how 
far  tenants  are  liable  to  others  for  injuries  arising  from  the 


PREFACE  TO   THE   FOURTH   EDITION.  vii 

condition  of  the  premises  in  their  occupancy ;  how  far  the 
tenant  of  one  part  of  a  dwelling-house  can  compel  a  tenant 
of  another  part  to  join  in  making  repairs ;  whether  the  sale 
of  growing  trees  and  crops  is  within  the  17th  section  of  the 
statute  of  frauds  ;  how  far  absolute  deeds  can  be  shown,  by 
parol,  to  be  only  mortgages ;  the  order  in  which  owners  of 
different  parcels  of  mortgaged  premises  are  chargeable  in  the 
redemption  thereof ;  the  validity  of  deeds,  blanks  in  which 
have  been  filled  after  execution  ;  what  American  rivers  come 
under  the  category  of  navigable,  and  what  are  the  boundary- 
lines  of  lands  bordering  upon  them,  and  what  of  lands  bound- 
ing by  the  sea,  or  by  lakes  and  ponds  ;  the  power  of  courts  to 
reform  deeds,  in  order  to  correct  mistakes  ;  how  far  erecting 
and  occupying  up  to  division-fences  affect  the  title  to  the 
adjacent  lands ;  how  far  holding  lands  as  partnership  assets 
is  a  conversion  of  the  same  "  out  and  out ;  "  and  how  far  one 
holding  an  easement  of  way  can  release  or  exchange  it  by 
parol. 

With  such  materials,  and  the  space  they  necessarily  occupy 
in  a  work  like  this,  it  has  been  impossible  to  avoid  expanding 
it  considerably  beyond  its  previous  limits  in  its  present  form. 
But  while  it  has  been  an  aim  in  its  composition  to  keep  it 
within  the  narrowest  compass,  its  main  purpose  has  been  to 
bring  the  work  up  to  the  present  time,  and  to  render  it  as 
accurate  and  complete  as  could  be  done  by  personal  effort 
and  attention. 

Cambridge,  March,  1876. 


PEEFACE 

TO   THE  FIRST  VOLUME  OF  THE  FIRST  EDITION. 


The  circumstances  under  which  this  work  is  now  offered 
to  the  profession  are  briefly  these  :  — 

When  called  upon  to  state  and  illustrate  to  the  classes  of  a 
law  school,  collected  from  almost  every  State  in  the  Union, 
the  leading  principles  of  the  Law  of  Real  Property,  the  author 
was  led  to  believe  that  there  was  a  want  to  be  supplied  by  a 
work,  which,  while  it  retained  so  much  of  the  English  common 
and  early  statute  law  as  applied  to  this  country,  should  com- 
bine with  it,  as  a  basis,  the  elements  of  American  law  as  the 
same  had  been  developed  in  the  legislation  and  judicial  decis- 
ions of  the  General  and  State  governments,  in  order  to  form 
as  nearly  as  might  be  one  homogeneous  system. 

A  conviction  of  the  need  of  such  a  work,  in  the  nature  of 
an  elementary  treatise,  strengthened  with  reflection,  till  the 
result  has  been  an  attempt  to  achieve  it  in  the  present  volumes. 

That  to  do  this  required  the  subject  to  be  treated  in  some 
of  its  parts  historically,  and  sometimes  to  refer  to  what  had 
become  practically  obsolete,  every  intelligent  reader  will 
readily  understand.  The  American  statesman  who  should 
content  himself  with  studying  the  simple  text  of  the  Consti- 
tution, without  the  light  which  English  and  Colonial  history 
throws  upon  its  provisions,  would  find  himself  at  a  loss  to 
understand,  or  how  to  solve,  many  of  the  questions  to  which 
the  construction  of  that  instrument  has  given  and  is  giving 
rise. 

So  the  American  lawyer  would  find  still  greater  difficulty 


PREFACE  TO    FIRST   VOLUME   OF   FIRST   EDITION.  IX 

in  understanding  that  great  unwritten  body  of  principles  which 
form  the  basis  of  the  common  law  of  nearly  every  State  in 
the  Union,  if  he  could  not  go  back  historically  to  the  coming 
in  of  the  feudal  system  at  the  Conquest,  read  the  charter  of 
Runnymede  in  the  light  of  the  circumstances  which  sur- 
rounded it,  and  trace  the  gradual  loosening  of  the  bands  of 
tenure  before  and  at  the  passage  of  the  statute  Quia  Emp- 
tores. 

If  the  early  English  common  law  had  no  other  application, 
a  knowledge  of  it  could  not  be  dispensed  with  by  a  lawyer, 
as  a  means  of  understanding  the  terms  and  phrases  in  modei* 
use,  and  as  furnishing  the  elementary  thoughts  and  opinions 
which  have  been  and  still  are  being  wrought  into  the  expand- 
ing and  progressive  systems  of  English  and  American  juris- 
prudence. 

The  English  Law  of  Real  Property  has  undergone  surpris- 
ing changes  within  the  last  thirty  j^ears,  whereby  a  process  of 
assimilation  in  the  systems  of  the  two  countries  upon  this 
subject  has  been  going  on,  "which  is  interesting  to  the  Ameri- 
can lawyer,  and  renders  a  knowledge  of  the  laws  of  each  the 
more  important  in  the  courts  of  this  country. 

Here  was  presented  one  of  the  most  difficult  problems  in 
the  prosecution  of  the  present  work.  It  seemed  particularly 
desirable  that  it  should  not  exceed  two  volumes  of  convenient 
size  ;  while  to  compress  into  that  space  all  that  should  be  said 
of  the  English  law,  as  well  as  of  the  statutes  and  decisions  of 
thirty-one  different  States  and  governments,  each  related  to, 
and  yet  independent  of,  the  others,  seemed,  at  first  sight,  an 
impracticable  undertaking.  How  far  the  difficulty  has  been 
surmounted,  the  reader  will  determine. 

It  has  been  the  intention  of  the  writer  to  state  no  proposi- 
tion as  law  which  did  not  appear  to  be  sustained  by  satisfac- 
tory authority.  So  far  as  the  same  could  reasonably  be  done, 
those  authorities  have  been  cited.  But,  with  all  his  precaution, 
this  could  not  fail  to  load  his  pages  with  references ;  and  he 
has  contented  himself,  not  unfrequently,  with  citing  an  ele- 
mentary work  of  received  authority  to  sustain  a  proposition, 
rather  than  to  multiply  the  citations  of  cases  which  are  to  be 
found,  if  desired,  in  the  elementary  work  referred  to.     In 


X  PREFACE   TO    FIRST   VOLUME   OF    FIRST   EDITION. 

some  instances,  lie  has  been  obliged  to  rely  upon  the  digest  of 
a  reported  case  ;  but  this  has  been  done  with  caution,  espe- 
cially when  the  point  to  be  stated  or  illustrated  seemed  to  be 
new  and  doubtful.  On  the  other  hand,  he  has,  in  but  a  few 
instances,  undertaken  to  give  digests  of  reported  cases.  He 
has  endeavored  to  state  principles  fully  and  clearly,  and  only 
for  purposes  of  illustration  has  occupied  space  with  a  detail 
of  the  facts  in  the  cases  cited. 

One  thing  he  has  had  in  view  in  the  arrangement  and  fill- 
ing up  of  his  plan ;  and  that  was  to  satisfy  the  reader  that  the 
iaw  of  Real  Property,  as  a  system,  was,  in  most  respects, 
symmetrical  and  complete.  The  popular  notion,  it  is  true, 
is,  that  this  branch  of  the  law  is  inevitably  dry,  intricate,  and 
distasteful.  But  if  its  terms  are  less  familiar,  and  its  rules, 
from  the  remoteness  of  their  origin,  seemingly  more  arbitrary 
and  artificial,  and,  as  a  whole,  it  is  less  flexible  and  easy  to  con- 
form to  the  changing  habits  of  a  people  than  those  of  trade 
and  commerce  and  the  mere  personal  relations  of  society,  it 
should  not  be  forgotten,  that,  as  a  science,  it  altogether  tran- 
scends those  in  exactness  and  certainty,  and  that  many  even 
of  its  subtleties  disappear  when  the  relations  of  its  elements 
have  been  ascertained  by  study  and  investigation. 

It  should  not  be  forgotten  that  it  lies  at  the  foundation  of 
the  English  common  law  itself;  that  it  was  upon  this  sturdy 
stock  that  the  laws  and  institutions  of  trading,  manufacturing, 
commercial  England  were  ingrafted,  and  are  now  in  no  small 
degree  dependent  for  their  element  of  vitality. 

Nor  should  it  be  overlooked,  that  with  the  Saxon  love  of 
land,  and  the  Norman  love  of  dominion  over  the  spot  one 
calls  his  own,  the  law  which  regulates  and  enforces  the  rights 
of  property  in  the  soil  will  never  cease  to  be  of  interest  to  a 
people  in  whose  veins  this  common  blood  is  mingled. 

It  has,  moreover,  been  the  field  in  which  the  keenest  intel- 
lect and  most  profound  learning  of  the  best  jurists  of  England 
and  our  own  country  have  found  ample  scope  and  employment 
in  grasping  and  analyzing  its  principles,  mastering  its  subtle- 
ties, and  testing  and  applying  its  rules. 

It  is  not  surprising,  therefore,  that  so  many  writers  have, 
from  time  to  time,  employed  their  best  powers  in  the  prepa- 


PREFACE   TO   FIRST   VOLUME   OP    FIRST   EDITION.  xi 

ration  of  works  embodying  and  illustrating  the  Law  of  Real 
Property.  Every  age  since  Glanville  has  had  its  writers  upon 
this  subject,  and  no  period  has  been  more  prolific  than  the 
present.  No  English  treatise,  of  course,  covers  the  same 
ground  as  was  proposed  to  be  done  in  the  present ;  though  it 
would  be  doing  injustice  to  the  treatise  of  Mr.  Joshua  Wil- 
liams, and'  the  notes  on  leading  cases  by  Mr.  Tudor,  among 
the  more  recent  of  those  works,  if  acknowledgment  had  not 
been  made,  as  it  often  is  in  these  pages,  for  the  aid  they  have 
afforded  in  the  preparation  of  this  work.  The}*  will,  more- 
over, show  the  use  which  has  been  made  of  the  earlier  treatises 
of  Blackstone,  Fearne,  Cruise,  Sanders,  Flintoff,  Sugden, 
Butler,  Crabb,  Preston,  Burton,  and  others  already  familiar 
to  the  American  lawyer.  The  work  will  show,  besides,  how 
far  he  has  availed  himself  of  the  labors  of  American  authors, 
whose  aid,  when  resorted  to,  he  has  intended  fully  to  ac- 
knowledge. 

This  attempt  to  produce  a  new  work  upon  a  hackneyed 
topic  will  not,  it  is  hoped,  render  the  writer  obnoxious  to  the 
charge  of  presumption  in  view  of  the  eminent  ability  of  those 
who  have  gone  before  him.  He  hopes  it  may,  at  least,  be 
found  to  possess  the  merit  of  being  adapted  to  the  wants  of 
the  American  lawyer,  as  well  as  the  American  student ;  and 
if,  in  its  composition,  it  is  found  to  want  the  terseness  and 
directness  which  might  be  derived  from  a  strict  adherence,  at 
all  times,  to  the  use  of  technical  terms  and  phrases,  the  reason 
for  it  might  be  traced  to  a  wish  to  present  the  propositions  it 
contains  in  language  readily  apprehended  by  the  student. 

Regarding  the  Law  of  Real  Property  as  a  sj-^stem  composed 
of  several  parts,  yet  substantially  complete  in  itself,  he  has 
endeavored  to  arrange  his  topics  with  a  due  regard  to  their 
natural  order  of  sequence,  in  relation  to  each  other. 

The  work  is  divided  into  three  books  :  the  first  embracing 
the  nature  and  quantity  of  estates  in  corporeal  hereditaments, 
with  their  qualities  and  characteristics,  which  will  be  found 
in  the  volume  now  published  ;  the  second  treating  of  incor- 
poreal hereditaments,  their  nature  and  characteristics ;  and 
the  third,  presenting  in  outline  the  titles  by  which  real 
property  may  be  acquired  and  held,  and  the   rules  of  its 


XU  PREFACE   TO    FIRST   VOLUME    OF   FIRST   EDITION. 

transmission  and  transfer,  will  constitute  a  second  volume. 
It  is  subdivided  into  chapters,  each  intended  to  embrace  a 
separate  and  distinct  subject,  with  a  subdivision  in  some 
cases  into  sections,  with  such  a  reference  in  the  notes  to  the 
American  statutes  as  to  give  the  reader  a  tolerably  full  idea 
of  the  coincidence  or  diversity  of  the  rules  of  the  several 
States  upon  those  subjects  therein  treated  of. 

It  aims,  in  brief,  to  provide  a  safe  and  convenient  book  of 
reference  to  the  lawyer ;  while  it  furnishes  an  elementary 
treatise  for  the  use  of  the  student,  embracing  what,  in  the 
form  of  lectures,  has  been  received  with  favor  by  successive 
classes  of  the  Law  School,  for  which  they  were  originally  pre- 
pared. 

From  the  encouragement  he  has  received  from  both  lawyers 
and  students  to  undertake  the  work,  he  is  induced  to  hope 
that  it  will  be  found,  in  some  measure,  to  supply  the  want  in 
which  it  originated. 

Cambridge,  July,  1860. 


NOTE. 

For  the  convenience  of  those  who  may  liave  occasion  to 
cite  or  examine  the  work  now  offered  in  a  new  edition,  the 
pS,ges  of  the  first  edition  are  retained. 

The  figures  upon  the  margin,  with  a  star  2:)refixed,  indicate 
the  pages  of  that  edition. 

The  second  volume  of  the  present  edition  begins  with 
Estates  upon  Condition  at  page  444  of  the  first  vokime 
of  the  first  edition.  The  third  begins  with  Title-Descent 
at  page  397  of  the  second  volume  of  the  first  edition.  The 
star  pages  are  retained  as  a  means  of  referring  from  one 
part  of  the  work  to  another,  instead  of  those  of  the  present 
edition. 


CON  T  p]  N  T  S. 


BOOK    I. 

CORPOREAL   HEREDITAMENTS. 


CHAPTER    I. 

Page 
NATURE    AND    CLASSIFICATION    OF    REAL    PROPERTY       .  1 


CHAPTER    II. 

FEUDAL    TENURES,    SEISIN,    ETC 35 

CHAPTER    III. 

ESTATES    IN    FEE-SIMPLE 68 

CHAPTER    IV. 

ESTATES-TAIL 92 

CHAPTER    V. 

ESTATES    FOR    LIFE. 

SECTION   I. 
Their  nature  and  iucidents lid 

SECTION  II. 
Of  estovers 128 


XVI  CONTENTS. 

SECTION  III. 
Of  emblements 132 

SECTION   IV. 
Of  waste 139 

CHAPTER    VI. 

ESTATES    BY    CURTESY 162 

CHAPTER    VII. 

DOWER. 

SECTION  I. 
Nature  and  history  of  dower 184 

SECTION   II. 
Of  what  a  widow  is  dowable 193 

SECTION   III. 
Requisites  of  dower 211 

SECTION  IV. 
How  lost  or  barred 2tl 

SECTION   V. 
How  and  by  whom  assigned 271 

SECTION    VI. 
Nature  of  the  estate  in  dower 301 

CHAPTER    VIII. 

JOINTURE 313 

CHAPTER    IX. 

ESTATES    BY    MARRIAGE. 
SECTION    I. 

Estates  during  coverture 328 

SECTION  II. 
Rights  of  homestead 342 


CONTENTS.  XVU 

Division  .1.  —  What  are  homestead  rights,  and  who  may  claim,  342 

Division  2.  —  In  what  such  rights  may  be  claimed     ....  351 

Division  3.  —  How  such  rights  are  ascertained  and  declared     .  366 

Division  4.  —  How  far  such  rights  answer  to  estates       .      .     .  380 

Division  5.  —  How  far  such  rights  are  exempt  from  debts    .     .  393 

Division  6.  —  How  far  surh  rights  may  prevent  alienation  .     .  405 

Division  7.  —  How  such  rights  may  be  waived  or  lost      .     .     .  420 
Division  8.  —  Of  procedure  affecting  such  rights,  and  effect  of 

change  in  the  condition  of  the  estate    .     .     .  429 


CHAPTER    X. 

estates  for  years. 

SECTION  I. 
Nature  and  history  of  estates  for  years 433 

SECTION  II. 

How  estates  for  years  may  be  created 446 

SECTION  III. 
Of  conditions  in  leases 470 

SECTION  IV. 
Of  covenants  in  leases 486 

SECTION   V. 
Of  assignment  and  sub-tenancy 507 

SECTION   VI. 
Of  eviction,  destruction,  and  use  of  premises 525 

SECTION   VII. 
Of  surrender,  merger,  &c 546 

SECTION   VIII. 
Lessee  estopped  to  deny  lessor's  title 555 

SECTION  IX. 
Of  disclaimer  of  lessor's  title 569 

VOL.  I.  6 


XVm  CONTENTS. 

SECTION  X. 
Of  letting  lands  upon  shares 572 

SECTION  XL 
Of  descent  and  devise  of  terms 579 


CHAPTER    XL 

ESTATES    AT    WILL. 

SECTION  I. 
Estates  properly  at  will 580 

SECTION  II. 
Estates  from  year  to  year 601 


CHAPTER    Xn. 

TENANCIES    AT    SUFFERANCE,    LICENSES,    ETC. 
SECTION    I. 

Tenancies  at  sufferance 616 

SECTION  II. 
License 628 


CHAPTER    XIH. 

JOINT-ESTATES. 
SECTION    I. 

Estates  by  joint-tenancy 641 

SECTION   II. 
Estates  in  coparcenary 650 

SECTION  III. 
Tenancies  in  common 652 


CONTENTS.  XIX 

SECTION  IV. 
Estates  in  partnership 666 

SECTION  V. 
Joint-mortgages 670 

SECTION  VI. 
Estates  in  entirety 672 

SECTION  vn. 

Partition 676 


TABLE    OF    CASES    CITED. 


A. 

Abbott  V.  Abbott,  i.  77,  387,  412,  413, 
.    425;  iii.  384,398,401,424. 
V.  Allen,  iii.  455,  456. 
V.  Alsdorf,  iii.  304. 
V.  Bayley,  iii.  257. 
V.  Berry,  i.  680. 
V.  Bradstreet,  ii.  546,  551. 
V.  Godfrey's  heirs,  ii.  53. 
V.  Jenkins,  ii.  603. 
V.  Kasson,  ii.  132. 
V.  Mills,  iii.  73. 
V.  Stewartstown,  ii.  307. 
V.  Upton,  ii.  188. 
Abby  V.  Billups,  i.  506. 
Abeel  v.  Radcliff,  ii.  504. 
Abell  V.  Cross,  iii  223. 
Abercrombie  v.  Baldwin,  i.  657. 
V.  Redpath,  i.  521. 
V.  Riddle,  i.  125,  298. 
Abergaveny's  (Lord)  case,  i.  646. 
Abingdon's  case,  i.  286. 
Abington  v.  North  Bridgewater,  iii.  426. 
Abraham  v.  Twigg,  ii.  411,  709,  711. 
Academy  of  Music  v.  Hackett,  i.  481, 

545. 
Accidental  Death  Ins.  Co.  v.  McKensie, 

i.  558,  566,  567. 
Ackla  V.  Ackla,  ii.  190. 
Ackiand  v.  Lutley,  ii.  469. 
Ackley  v.  Chamberlain,  i.  353,  394. 

V.  Dygert,  iii.  77. 
Acland  v.  Gaisford,  ii.  226. 
Acocks  V.  Phillips,  i.  481. 
Acroyd  v.  Smith,  ii.  288. 
Acton  V.  Blundell,  ii.  353,  354. 
Adair  v.  Bogle,  i.  490. 

V.  Loth,  i.  163,  173,  174. 
Adam  v.  Ames  Iron  Co.,  i.  678,  682. 

V.  Briggs  Iron  Co.,  i.  17, 655, 684  ; 
ii.  375,  377. 
Adams  i'.  Adams,  i.  384 ;  ii.  469, 495,  600. 
V.  Andrews,  i.  635. 
V.  Brown,  ii.  177,  222,  234. 
V.  Bucklin,  ii.  277,  281. 
V.  Butts,  i.  306. 
V.  Corriston,  ii.  106,  133. 


Adams  v.  Cuddy,  iii.  326,  408. 

V.  Frothingham,  i.  654,  685;  iii. 
205,  384. 

V.  Frye,  iii.  294.  ' 

V.  Gibney,  i.  494. 

V.  Goddard,  i.  547. 

V.  Guerard,  i.  52 ;   ii.  443,  479, 
598. 

V.  Guice,  iii.  52,  158. 

V.  Hill,  i.  233 ;  ii.  212. 

V.  Jenkins,  i.  358,  412. 

V.  Kerr,  iii.  274. 

V.  Logan,  i.  174,  175;  iii.  194. 

V.  McKesson,  i.  572,  614. 

V.  Morse,  iii.  442,  443. 

V.  Palmer,  i.  246,  335 ;  iii.  212, 
214,  216. 

V,  Parker,  ii.  116. 

V.  Paynter,  ii.  254. 

V.  Pease,  iii.  413. 

V.  Rockwell,  iii.  6-5,  77,  88. 

V.  Ross,  i.  82,  83;  ii.  553,  603, 
604  ;  iii.  252,  448,  475. 

V.  Saratoga  &  W.  R.  R.,  iii.  422. 

V.  Savage,  ii.  398,  41-3,  421,  433, 
609,  613. 

V.  Smith,  i.  8. 

V.  Steer,  iii.  380. 

V.  Stevens,  ii.  44 ;  iii.  382. 

V.  Freeman,  i.  630. 

V.  Von  Alstj-ne,  ii.  367 

V.  Wheeler,  ii.  151. 
Addison  v.  Hack,  i.  633, 634, 639  ;  ii.  372. 
Adsit  V.  Adsit,  i.  323,  324. 
Acer  V.  Westcott,  iii.  328. 
^tna  Ins.  Co.  v.  Tyler,  ii.  93,  231. 
Agar  V.  Young,  i.  568. 
Agricultural  Bank  v.  Rice,  iii.  253,  257. 
Aiken  v.  Bruen,  ii.  206. 

V.  Gale,  ii.  178,  203,  204,  206,  211, 

212,  216. 
V.  Smith,  i.  451,  572,  573,  574. 
Aikin  v.  Albany  R.  R.,  i.  501. 
Albany's  case,  ii.  643. 
Albany  Fire  Ins.  Co.  v.  Bay,  iii.  253, 256. 
Albany  Street,  in  re,  iii.  214. 
Alden  v.  Garver,  ii.  86. 
Alderman  v.  Neate,  i.  451,  452. 
Alderson  v.  Miller,  i.  560;  iii.  91. 


XXll 


TABLE   OP    CASES   CITED. 


AUlred's  case,  ii.  313,  347. 
Aklrioli  V.  Cooper,  ii.  2U2. 

V.  Manin,  i.  (353 ;  ii.  65,  216. 
V.  Parsons,  i  4. 
Aldridge  v.  Dunn,  ii.  88,  90. 
Alexander  v.  Alexander,  ii.  609. 

V.  Carew,  i.  611  ;  iii.  329. 

V.  Dorsey,  i.  545. 

V.  Fisher,  i.  143. 

V.  Greenwood,  ii.  254. 

V.  Kennedy,  iii.  142. 

V.  Merry,  iii.  210. 

V.  Mills,  ii.  644. 

V.  Pendleton,  iii.  145. 

V.  Polk,  iii.  135,  158,  272. 

V.  Schreiber,    iii.    486,   488, 

490,  491. 
t;.  Tams,  ii.  477. 
V.  Warrance,  i.  166 ;  ii.  277, 
475. 
Alford  V.  Vickery,  i.  609. 
Allan  V.  Gonime,  ii.  304,  333,  337. 
Allen  V.  Allen,  i.  121,  122;  iii.  77,  100. 
V.  Bates,  iii.  428. 
V.  Bryan,  i.  520,  521 ;  ii.  525. 
V.  Bryant,  ii.  525. 
i;.  Carpenter,  i.  135,  628. 
V.  Chatfield,  i.  559. 
V.  Clark,  ii.  174, 179, 202,  204, 208. 
V.  Cook,  i.  389,  401. 
V.  Culver,  ii.  284. 
V.  Evarts,  iii.  228. 
V.  Gibson,  i.  665. 
V.  Hall,  i.  656. 

V.  Hooper,  i.  333 ;  iii.  253,  259. 
V.  Helton,  i.  644 ;  iii.  131, 431, 475. 
V.  Howe,  ii.  11. 
V.  Imlet,  ii.  520. 

V.  Jaquish,  i.  447,  647,  562,  599. 
V.  Kingsbury,  iii.  408. 
V.  Lambden,  i.  438. 
i;.  Little,  iii.  510. 
V.  Maddock,  iii.  .508. 
V.  Mayfield,  ii.  548. 
V.  McCoy,  i.  209. 
V.  Parish,  iii.  65,  109. 
V.  Pray,  i.  323,  324. 
V.  Scott,  iii.  388,  389,  396,  435. 
V.  Sayward,  iii.  466,  475,  484. 
V.  Ta'ft,  iii.  428. 
V.  Thayer,  i.  77. 
«;.  Trustees,  i.  99,  112 ;  ii.  690. 
Alley  V.  Bay,  i.  410. 

V.  Lawrence,  ii.  656. 
AUis  V.  Billings,  iii.  249. 

V.  Moore,  ii.  332 ;  iii.  166. 
Allison  V.  Shilling,  i.  417. 
AUyn  y.  Mather,  ii.  581,  582. 
Alter's  Appeal,  iii.  215,  382. 
Altham  v.  Anglesea,  ii.  432. 
Altham's  case,  i.  101. 
Althorf  V.  Wolfe,  i.  151. 
Alton  V.  Pickering,  i.  585,  593. 
Alvord  V.  Collin,  iii.  223. 
Alvord  Co.  V.  Gleason,  1.  25. 


Alwood  I".  Mansfield,  i.  558. 

V.  Kucknum,  i.  573,  574. 
Ambler  v.  Norton,  i.  326. 
Anient  v.  Wolf,  iii.  153. 
Anier.  Academy  v.  Harvard  College,  iii. 

516. 
Amer.  Bib.  See.  v.  Wetmore,  iii.  518. 
Amer.  Guano  Co.  v.  U.  S.  Guano  Co., 

iii.  182. 
Ames  V.  Ashley,  ii.  503. 

V.  Norman,  i.  67.2,  673,  674. 
Amherst  v.  Lytton,  ii.  574. 
Amherst  Academy  v.  Cowles,  ii.  619. 
Amidown  v.  Peck,  ii.  125,  245. 
Ammidown  v.  Bull,  iii.  396. 

V.  Granite   Bank,  iii.  394, 
396. 
Amner  v.  Loddington,  ii.  726. 
Amonett  v.  Amis,  iii.  108. 
Amory  v.  Fairbanks,  ii.  241. 
V.  Meredith,  ii.  659. 
V.  Keilly,  ii.  87. 
Ancaster  v.  Mayor,  ii.  198. 
Anders  v.  Meredith,  i.  661. 
Anderson  v.  Anderson,  i.  411 ;  iii.  607. 
V.  Baumgartner,  ii.  97,  122. 
V.  Buchanan,  ii.  332. 
V.  Chicago  Insurance  Co.,  i. 

634. 
V.  Coburn,  iii.  74,  428. 
V.  Darby,  i.  459  ;  iii.  163. 
V.  Dugas,  iii.  320.  < 

V.  Greble,  iii.  529. 
V.  Jackson,  ii.  695,  703,  706. 
V.  Miller,  iii.  117. 
V.  Neil",  ii.  129,  150. 
V.  Weston,  iii.  381. 
Anding  v.  Davis,  ii.  51. 
Andrews,  ex  parte,  ii.  254. 

V.  Andrews,  i.  306,  318,  321 ; 

iii.  373. 
V.  Brumfield,  ii.  721. 
V.  Burns,  ii.  145. 
V.  Davison,  iii.  460,  472. 
V.  Fish,  ii.  71,  162,  163. 
V.  Gillespie,  ii.  247 ;  iii.  383, 

472. 
V.  Hailes,  i.  456. 
V.  Lyon,  iii.  82,  83. 
V.  Roye,  ii.  544,  655,  700,  703, 

721. 
V.  Senter,  ii.  17,  19. 
V.  Scotton,  ii.  241,  248. 
V.  Sparhawk,  ii.  528. 
V.  Spurr,  iii.  382. 
V.  Todd,  iii.  3'J9. 
Angel  V.  Boner,  ii.  188,  189. 
Angell  V.  Rosenbury,  i.  83 ;  ii.  495. 
Anglesea  v.  Church  Wardens,  ii.  18. 
Ankenny  v.  Pierce,  i.  556. 
Annan  v.  Folsom,  iii.  327. 
Anonymous,  i.  59  ;  ii.  224,  258,  365, 416  ; 

iii.  123,  318,  319. 
Ansley  v.  Longmire,  i.  556,  562. 
I  Anson  v.  Anson,  ii.  251. 


TABLE   OF    CASES    CITED. 


XXlll 


Anthony  v.  Gifford,  iii.  55. 
V.  Lapham,  ii.  349. 
V.  Smith,  ii.  91. 
Antoni  v.  Belknap,  i.  5,  6,  8,  30,  618. 
Apple  V.  Apple,  i.  195. 
Applegate  i-.  Gracy,  iii.  255,  320,  324. 

V.  Mason,  ii.  187. 
Appleton  V.  Boyd,  i.  644,  673 ;  ii.  143. 
Arbuckle  v.  Ward,  ii.  323,  332 ;  iii.  53. 
Arcedechne  v.  Bowes,  ii.  180. 
Archer  v.  Bennett,  ii.  315;  iii.  396. 

I'.  Jones,  i.  127. 
Archer's  case,  ii.  589,  599,  627. 
Arden  v.  Pullen,  i.  538,  544. 
Ards  V.  Watkins,  i.  521. 
Arents  v.  Commonwealth,  ii.  123. 
Argyle  v.  Dwinell,  i.  683. 
Arkwright  v.  Geil,  ii.  358. 
Armitage  v.  Wickliffe,  ii.  128,  129. 
Arms  V.  Bm-t,  i.  83. 

V.  Lyman,  i.  684. 
Armstrong  v.  Armstrong,  ii.  704. 

V.  Caldwell,"ii.  377;  iii.  139. 
V.  Darby,  iii.  448. 
V.  Pratt,  ii.  256. 
V.  Risteau,  iii.  134,  145,  164. 
V.  Wheeler,  i.  503. 
V.  Wilson,  i.  164. 
V.  Wolsley,  ii.  428. 
Arnold  v.  Arnold,  i.  195. 

V.  Brown,  i.  105;  ii.  523,  524. 

V.  Den,  iii.  15. 

V.  Ellmore,  iii.  410. 

V.  Foot,  ii.  215,  349,  352  ;  iii.  52. 

V.  Gilbert,  ii.  733. 

V.  Grimes,  iii.  197. 

V.  H.  R.  R.  Road,  ii.  340. 

V.  Mattison,  ii.  51. 

V.  Patrick,  ii.  87. 

V.  Revoult,  i.  458. 

V.  Richmond   Iron    Works,   iii. 

249. 
V.  Stevens,  ii.  339,  371. 
V.  Wainwright,  i.  668. 
Arnot  V.  Post,  ii.  129. 
Arrington  v.  Cherry,  ii.  526. 
Arrison  v.  Harmstead,  iii.  247. 
Arrowsmith   v.  Burlington,  i.   66 ;   iii. 

212. 
Arthur  v.  Bockenhara,  iii.  538. 
V.  Weston,  iii.  268,  264. 
Artz  V.  Grave,  ii.  50. 
Asay  V.  Hoover,  ii.  102,  162. 
Ascough's  case,  i.  528. 
Ashby  V.  Billups,  i.  506. 

V.  Eastern  R.  Road,  i.  60 ;  iii.  419. 
V.  Warner,  i.  475,  597. 
V.  White,  ii.  .369. 
Ashhurst  v.  Given,  ii.  410, 446,  458,  473, 
519. 
V.  Montour  Iron  Co.,  ii.  80. 
Ashley  v.  Ashley,  ii.  323,  352  ;  iii.  144, 
163. 
V.  Warner,  i.  600  ;  ii.  26. 
Aslimun  v.  Williams,  i.  4,  640. 


Ash  well  V.  Ayers,  iii.  274. 
Askew  I'.  Daniel,  iii.  255. 
Aspilen  V.  Austin,  i.  487. 
Astbury,  ex  parte,  in  re  Richards,  i.  27. 
Astor  V.  Hoyt,  i.  523;  ii.  165. 
V.  L'Amoreaux,  ii.  531. 
V.  Miller,  i.  498,  499,  502,  523. 
Astrom  v.  Hammond,  iii.  199. 
Atkins  V.  Boardman,  ii.  336,  338,  369  ; 
iii.  388. 
V.  Chilson,  i.  160,  161,  484 ;  ii.  22. 
V.  Johnson,  iii.  135. 
V.  Kinnan,  iii.  219,  227,  230. 
V.  Kron,  i.  124. 
V.  Merrill,  i.  205. 
V.  Sawyer,  ii.  163,  164. 
V.  Sleeper,  i.  438,  440. 
V.  Yeomans,  i.  281,  284. 
Atkinson  v.  Atkinson,  i.  376,  388,  415. 
V.  Baker,  i.  121. 
V.  Hutchinson,  i.  101. 
Atlantic  Dock  Co.  v.  Leavett,  i.  486  ;  ii. 

281 ;  iii.  272,  312. 
Attaquin  v.  Fish,  i.  160. 
Attersol  v.  Stevens,  i.  150. 
Attes  V.  Hinkler,  iii.  226. 
Attorney-Gen.  v.  Boston  Wharf  Co.,  iii. 
430. 
V.  Bower,  iii.  514. 
V.  Chambers,  iii.  59,  418. 
V.  Doughty,  ii.  313,  347. 
V.  Gill,  ii.  710. 
V.  Hall,  ii.  544,  720,724; 

iii.  529. 
V.  Merrimack  Co.,  ii.  24 ; 

iii.  72. 
V.  Moore,  ii.  523. 
V.  Pearson,  ii.  514. 
V.  Proprietors,     tSoc,     ii. 

495,  496. 
V.  Purmort,  ii.  41. 
V.  Scott,  ii.  467. 
V.  Vigor,  ii.  140. 
V.  Wistanley,  ii.  248. 
Attwater  v.  Attwater,  i.  81 ;  ii.  9. 
Attwood  V.  Fricot.  ii.  381. 
Atwater  i-.  Bodfish,  ii.  373. 
Atwood  V.  Atwood,  i.  215,  260,  279. 

V.  Vincent,  ii.  93. 
Aubin  V.  Daly,  i.  210. 
Aufricht  v.  Northrop,  ii.  113. 
Auijustus  V.  Seabolt,  ii.  534,  560 ;  iii.  6. 
Auriol  V.  Mills,  i.  493,  504. 
Austen  v.  Halsay,  ii.  91. 
Austin  V.  Austin,  ii.  67. 
V.  Bailey,  iii.  138. 
V.  Burbank,  ii.  258. 
V.  Canibridgeport  Parish,  ii.  7, 

15,  16,  17  ;  iii.  523. 
V.  Downer,  ii.  55. 
V.  Hall,  i.  665. 
V.  Hudson   River  R.  R.  Co.,  i. 

160;  ii.  360. 
V.  Rutland  Railroad  Co.,  i.  659, 
680;ii.367;iii.  55, 145,417. 


XXIV 


TABLE   OF   CASES   CITED. 


Austin  V.  Sawyer,  iii.  346,  392. 

r.  Shaw,  iii.  204. 

V.  Stanley,  i.  34-5,  361. 

V.  Stevens,  i.  126,  148. 

V.  Swank,  i.  370,  423. 

V.  Thompson,  i.  584. 

V.  Umlerwood,  i.  396. 
Auworth  V.  Johnson,  i.  149,  543. 
Avant  V.  Robertson,  i.  268. 
Avelyn  v.  Ward,  ii.  15,  700. 
Averall  v.  Wade,  ii.  220. 
Averett  v.  Ward,  ii.  255,  265. 
Averill  v.  Gutlirie,  ii.  150. 

V.  Taylor,  i.  450  ;  ii.  174. 

?'.  Wilson,  iii.  92. 
Avon  Co.  V.  Andrews,  iii.  396. 
Ayer  r.  Ayer,  ii.  434,  458. 
V.  Emery,  ii.  4. 
V.  Spring,  i.  279,  292. 
Avliffe  V.  Murray,  ii.  516. 
Ay  mar  v.  Bill,  ii.  118. 
Aj'ray's  case,  iii   263,  264. 
Ayres  i'.  Falkland,  i.  90 ;  ii.  739. 
I'.  H listed,  ii.  220. 
V.  Waite,  ii.  181. 
V.  Watson,  ii.  186. 


B. 

Babb  V.  Perley,  i.  142,  333,  335. 
Babbit  v.  Scroggins,  i.  672. 
Babcock  v.  Bowman,  iii.  250. 

V.  Hoey,  i.  .397,410;  ii.  103. 
V.  Jordan,  ii.  47,  162. 
V.  Kennedy,  ii.  137. 
V.  Perry,  ii.  264. 
V.  Scovill,  i.  503. 
?;.  Utter,  i.  637  ;  iii.  411. 
V.  Wvman,  ii.  51. 
Bachelder  v.  Wakefield,  iii.  205. 
Backenstoss  v.  Stohler,  iii.  442. 
Backus  V.  Chapman,  i.  600. 

V.  MeCov,    iii.    450,  451,   452, 
454,' 457,  460. 
Bacon  v.  Bowdoin,  i.  451;  ii.  174;  iii. 
396. 
V.  Brown,  i.  603 ;  ii.  48. 
V.  Huntington,  ii.  21. 
V.  Lincoln,  iii.  458. 
V.  Mclntire,  ii.  183,  184. 
V.  Simpson,  iii.  237. 
V.  Taylor,  ii.  442. 
Badge  v.  Floyd,  ii.  710,  718. 
Badger  v.  Boardman,  ii.  310,  311. 
V.  Holmes,  i.  661. 
V.  Lloyd,  ii.  710,  718. 
Badgley  v.  Bruce,  i.  277. 
Badlam  v.  Tucker,  ii.  8,  151. 
Bagley  c.  Freeman,  i.498,  503,  510,  524, 

V.  Morrill,  iii.  403. 
Bagnell  v.  Broderick,  iii.  187,  193,  196 

197. 
Bagott  V.  Oct,  iii.  55. 


Bagshaw  v.  Spencer,  ii.  434. 
Bailey  v.  iEtna  Ins.  Co.,  ii.  71. 
V.  Appleyard,  ii.  300 
V.  Carieton,  iii.  150,  152,  154. 
t'.  Delaplaine,  i.  549. 
V.  Fillebrown,  i.  575. 
V.  Miltcnherger,  iii.  474. 
V.  Moore,  i.  562. 
V.  Myrick,  ii.  221. 
V.  Pearson,  i.  339. 
V.  Richardson,  ii.  196. 
V.  Sisson,  i.  678. 
V.  Smith,  ii.  247. 
V.  Stephens,  i.  629. 
V.  Wells,  i.  504,  547,  548. 
V.  White,  iii.  403,  429. 
Bain  v.  Clark,  i.  534. 
Bainbridge  v.  Owen,  ii.  224. 
Baine  v.  Williams,  ii.  219. 
Bainway  v.  Cobb,  i.  27. 
Baird  r.  Corwin,  i.  681. 
Baker  v.  Adams,  i.  607. 

V.  Baker,  i.  273,  278,  306. 
V.  Bliss,  iii.  336. 
V.  Bowen,  i.  347. 
V.  Bridge,  i.  85 ;  iii.  527. 
V.  Chase,  i.  217;  ii.  499. 
V.  Dening,  iii.  271. 
V.  Dewe}',  iii.  378. 
V.  Fales,  iii.  205. 
V.  Flood,  ii.  194. 
V.  Gostling,  i.  520. 
V.  Haskell,  iii.  290,  293,  296. 
V.  Hunt,  iii.  449. 
V.  Jordan,  iii.  392. 
V.  Matcher,  iii.  328. 
V.  Mattocks,  iii.  36. 
V.  Pratt,  i.  548,  550. 
V.  Scott,  ii.  605. 
V.  Talbott,  iii.  408. 
V.  Terrell,  ii.  217. 
V.  Thrasher,  ii.  60. 
V.  Townsend,  iii.  120. 
V.  Vining,  ii.  474,  476. 
V.  Wind,  ii.  44. 
Balch  V.  Onion,  ii.  175. 
Baldwin  v.  Allison,  ii.  264,  483. 
V.  Brown,  iii.  86,  89. 
V.  Jenkins,  ii.  55,  164. 
V.  Maultsby,  iii.  294. 
V.  Porter,  ii.  507. 
V.  Thompson,  ii.  217. 
V.  Tuttle,  iii.  33.j. 
V.  Walker,  i.  496,  517 ;   ii.  137. 
V.  Whiting,  i.  655. 
Ball  V.  Cullimore,  i.  584,  585. 
V.  Deas,  i.  645. 
V.  Dunsterville,  iii.  280. 
V.  Lively,  i.  556. 
V.  McCawley,  iii.  322. 
V.  Wyeth,  i.  506 ;  ii.  48,  187. 
Ballance  v.  Forsyth,  iii.  223. 
Ballard  v.  Ballard,  ii.  552. 

V.  Ballardvale,  ii.  166. 
V.  Batler.  i.  539. 


TABLE   OP    CASES    CITED. 


XXV 


Ballard  v.  Carter,  ii.  140 ;  iii.  509. 

V.  Dyson,  ii.  333. 
Ballentine  i-.  rovner,  i.  148. 
Balls  V.  Westwood,  i.  556,  659. 
Bally  V.  Wells,  ii.  287;  iii.  470. 
Balston  v.  Bensted,  ii.  356. 
Baltimore  v.  White,  iii.  327. 
Bamfield  v.  Popham,  ii.  709. 
Bancroft  v.  Ives,  iii.  19,  540. 
V.  Ward  well,  i.  595. 
V.  White,  i.  237. 
Banister  r.  Henderson,  i.  58 ;  iii.  481. 
Bank  v.  Anderson,  ii.  148. 
V.  Davis,  i.  175. 
V.  Eastman,  iii.  306,  307. 
V.  Owens,  i.  207. 
V.  Rose,  ii.  186. 
Bank  of  Albion  v.  Burns,  ii.  214,  218. 
Auburn  v.  Roberts,  ii.  165. 
Augusta  V.  Earle,  ii.  291. 
England  v.  Tarleton,  ii.   122, 

123,  125. 
Lansingburg  v.  Crary,  i.  14. 
Metropolis   v.   Guttschliok,  ii. 

187. 
Mobile   V.  Planter's  Bank,  ii. 

123. 
Montgomery  Co.'s  Appeal,  ii. 

1.53,  154. 
Mt.  Pleasant  v.  Sprigg,  ii.  48. 
Penn  v.  Wise,  i.  10,  609,  5W. 
So.  Carolina   v.   Campbell,  ii. 
214. 
V.    Mitchele,   ii. 
220. 
State  of  Indiana  v.  Anderson, 

ii.  103,  107. 
U.  S.  V.  Carroll,  ii.  252. 

V.  Cavert,    ii.    122,    123, 

124. 
V.  Dunseth,  i.  282. 
V.  Housman,  ii.  418  ;  iii. 
377. 
Utica  V.  Finch,  ii.  152. 

V.  Mesereau,  i.  458,  454, 
559. 
Washington  v.  Hupp,  ii.  137. 
Westminster  v.  Wiiyte,  ii.  43, 
50. 
Bank,  &c.  v.  Iceberger,  &c.  Pac.  R.  R., 

ii.  524. 
Banks  v.  Am.  Tract  Soc,  ii.  347. 
V.  Ogden,  iii.  50,  60,  423. 
V.  Sutton,  i.  202,  221;  ii.  489. 
Banning  v.  P^des,  iii.  282. 
Bannon  v.  Angier,  ii.  339,  371. 
Baptist  Assoc,  c.  Hart,  iii.  513,  515,  518. 

Society  v.  Hazen,  ii.  496. 
Barber  v.  Babel,  i.  381. 

V.  Barber,  iii.  434. 
V.  Harris,  i.  673,  674;  iii.  106. 
V.  Root.  i.  335. 
Barbour  v.  Barliour,  i.  192,  234. 
Bardwell  v.  Ames,  iii.  388,  390. 
Barford  v.  Street,  iii.  632. 


Barger  i'.  Miller,  iii.  277,  278. 

Baring  v.  Ruder,  i.  37. 

Barker  v.  Barker,  i.  172,  178  ;  ii.  484. 

V.  Bell,  ii.  101,  164,  186  ;  iii.  72. 

V.  Blake,  i.  279,  280. 

V.  Brown,  iii.  452. 

V.  Damer,  i.  49-5. 

V.  Dayton,  i.  343,  428. 

V.  Greenwood,  ii.  409,  495. 

V.  Keat,  ii.  415,  429. 

«;.  Parker,  i.  229 ;  ii.  117. 

V.  Richardson,  ii.  329. 

V.  Solomon,  iii.  66,  162. 

V.  Wood,  ii.  180. 
Barksdale  v.  Elam,  ii.  10. 
Barlow  v.  ]\IcKinley,  iii.  462. 

V.  Wain  Wright,  i.  608,  606,  610, 
615. 
Barnard  v.  Edwards,  i.  266,  302. 
V.  Jewett,  ii.  478,  480. 
V.  Poor,  i.  151. 
V.  Pope,  i.  6.56,  057,  681. 
Barnes  v.  Allen,  ii.  716. 

V.  Barnes,  i.  631,  640. 

V.  Burt,  iii.  441. 

V.  Camack,  ii.  191. 

V.  Gay,  i.  205,  207,  224,  398. 

V.  Irwin,  ii.  654. 

V.  Lee,  ii.  128,  141. 

V.  Mawson,  ii.  375. 

!'.  McKay,  iii.  82. 

I'.  Racster,  ii.  206,  220. 

V.  Ward,  i.  542. 
Barnet  v.  Dennison,  ii.  193. 

V.  Dougherty,  ii.  478. 
Barnett's  Appeal,  ii.  4(58,  626,  628. 
Barney  v.  Frowner,  i.  280,  290,  291. 

V.  Keith,  iii.  116. 

V.  Leeds,  i.  345,  350,  375,  389, 
430. 

V.  McCarty,  ii.  147  ;  iii.  316,  324. 

V.  Miller,  iii.  400. 

V.  Myers,  ii.  203,  206. 
Barns  v.  Hatch,  iii.  293. 
Barnstable  v.  Thacher,  ii.  331 ;  iii.  128. 
Barrmm  ?'.  Childs,  iii.  377. 
Barr  v.  Galloway,  i.  174. 

V.  Gratz,  i.  58 ;  iii.  128,  132,  137, 
144,  152,  309. 
Barren  v.  Joy,  ii.  602,  504,  505,  529. 

V.  Sabine,  ii.  59. 
Barret  v.  Shaubhut,  ii.  144. 
Barrett  v.  Barron,  iii.  306. 

V.  French,  ii.  424,  443;  iii.  372. 

V.  Porter,  iii.  495. 
Barroilhet  v.  Battelle,  i.  484,  499,  517, 

522. 
Barron  v.  Barron,  ii.  476,  505. 
Barrow  v.  Richards,  ii.  12,  286,  303,  312. 
Barruso  v.  Madan,  ii.  7. 
Barry  v.  Adams,  iii.  329. 
V.  Gamble,  iii.  193. 
Bartholomew   u.   Cander,  iii.  449,  452, 
457. 
V.  Edwards,  iii.  152,  396. 


XXVI 


TABLE   OF    CASES    CITED. 


Bartholomew  ik  Hamilton,  i.  24. 

V.  Hook,  i.  3'J5. 
Bartlet  v.  Harlow,  i.  tJu5. 

V.  Kinjr,  ii-  SI'-)- 
Bartlett  v.  Bartlett,  ii.  502;  iii.  257. 

V.  Drake,  i.  457 ;  iii.  280,  332. 
V.  Phiierson,  iii,  426. 
V.  Gouge,  i.  204. 
V.  Perkins,  ii.  742. 
V.  Pickersgill,  ii.  481. 
Barto  I".  Himrod,  iii.  212. 
Barton  v.  Dawes,  iii  401. 
V.  Morris,  iii.  255. 
Barwick's  case,  ii.  536. 
Bascom  v.  Albertson,  iii.  518,  519,  520, 

522. 
Basford  v.  Pearson,  iii.  115,  241,  242, 

376. 
Baskin's  Appeal,  i.  426. 
Bass  V.  Mitciiell,  iii.  398. 

V.  Scott,  ii.  467. 
Basse  v.  Gallegrger,  ii.  64. 
Bassett  v.  Bassett,  iii.  244,  376. 

V.  Brown,  i.  457  ;  iii.  260. 
V.  Mason,  ii.  193. 
V.  Messner,  i.  362,  391,  432. 
Bastard's  case,  i.  259. 
Batchelder  v.  Dean,  i.  440,  442. 

V.  Kenniston,  iii.  59,  430. 
V.  Robinson,  ii.  158,  242. 
V.  Stursfis,  iii.  495. 
);.  Wakefield,  634. 
Bateman  v.  Bateman,  i.  235. 
Bates  V.  Bates,  i,  196,  198,  386,  424. 

V.  B.  &  N.   Y.  Central  R.  R  ,  iii. 

273,  275, 
V.  Foster,  iii.  476,  483,  484. 
V.  Miller,  ii.  251. 
V.  Norcross,  i.  2.55 ;  iii.  148,  319, 

466,  479,  480. 
V.  Ruddick,  ii.  206. 
V.  vShrajder,  i.  153. 
V.  Tymason,  iii.  408. 
Batesville  Inst.  v.  Kaulfman,  ii.  122. 
Battel  V.  Smith,  i.  654. 
Battey  v.  Hopkins,  ii.  624. 
Battle  V.  Petway,  ii.  526. 
Batty  V.  Snook,  ii.  55,  62. 
Bautjan  v.  Mann,  iii.  72. 
Bauni  ('.  Grigsby,  ii.  87,  88,  91,  92. 
Baumgartner  v.  Guessfeld,  ii.  475. 
Baxter  v.  Bodkin,  iii.  115,  248. 

V.  Bradburv,  i.  4-54 ;  iii.  18,  109, 

111,  479,  493. 
V.  Browne,  i.  450. 
V.  Child,  ii.  62. 
V.  Dear,  i.  431  ;  ii.  45,  105. 
V.  Dyer,  ii.  IGl. 
V.  Mclntire,  ii.  186. 
V.  Willey,  ii.  51. 
Bay  City  Gas  Light  v.  Industrial  Works, 

iii.  430. 
Bayer  v.  Cockerill,  ii.  449  ;  iii.  359. 
Baykin  v.  Rain,  i.  182. 
Bayler  v.  Commonwealth,  ii.  41 ;  iii.  348. 


Bayles  v.  Baxter,  ii.  477,  480, 
Bayley  v.  Bailey,  ii.  45,  62. 
V.  Gould,  ii.  118. 
V.  Greeideaf,  ii.  88,  89,  93. 
Baylis  v.  Young,  iii.  326. 
Bayly  v.  Lawrence,  i.  528. 
Beach  v.  Beach,  ii.  527. 

V.  Farish,  i.  505,  535. 
V.  Miller,  iii.  462. 
V.  Packard,  iii.  378. 
V.  White,  iii.  336. 
Beahan  v.  Stapleton,  iii.  405. 
Beal  V.  Blair,  ii.  79. 

V.  Warren,  iii.  253,  334,  337. 
Bealey  v.  Shaw,  ii.  319,  350. 
Beall  V.  Burkhalter,  iii.  491. 

V.  Fox,  ni.  517,  518. 

Beals  V.  Cobb,  ii.  47,  256. 

Beaman  v.  Buck,  iii.  237. 

V.  Russell,  iii.  246. 

V.  Whitney,  iii.  264,  314. 

Bean  v.  Boothby,  ii.  195. 

V.  Coleman,  ii.  337  ;  iii.  443. 
V.  Dickerson,  i.  501. 
V.  Whitcomb,  ii.  264. 
Bear  v.  Snyder,  i.  259,  279. 
Bearce  v.  Jackson,  iii.  452. 
Beard  v.  Fitzgerald,  ii.  202. 
V.  Knox,  i.  188. 
V.  Nutthall,  i.  320. 
V.  Westcott,  ii.  668,  703. 
Beardman  v.  Wilson,  i.  473,  510,  515. 
Beardslee  v.  Beardslee,  i.  195,  196,  257. 
Beardsley  v.  Foot,  iii.  83. 

V.  Kright,  i.  687. 
Beaseley  v.  Clarke,  ii.  325. 
Beatie  v.  Butler,  ii.  69,  72,  77. 
Beatty  v.  Gregory,  i.  636. 
V.  Mason,  iii.  223. 
Beaty  v.  Hudson,  iii.  425. 
Beaudley  v.  Brook,  ii.  423 ;   iii.  341. 
Beaupland  v.  McKeen,  iii.  77,  82,  85,  91, 

493. 
Beavan  v.  McDonnell,  i.  45-5. 
Beavers  v.  Smith,  i.  207,  282,  292,  300. 
Beavin  v.  Gove,  ii.  244. 
Bechtel  v.  Carslake,  iii.  485. 
Beck  V.  McGillis,  ii.  140. 

V.  Metz,  iii.  19. 
Beck's  Ex'rs  v.  Graybill,  ii.  474. 
Becker  v.  St.  Charles,  iii.  485. 

V.  Van  Valkenburgh,  iii.  166. 
Beckerkord,  in  re,  i.  352,  360,  374. 
Beckett  ?'.  Howe,  iii.  505. 
Beckwith  v.  Howard,  i.  487. 
Beckwith's  case,  ii.  428,  429,  431. 
Beddoe  v.  Wadsworih,  iii.  451,  452. 
Bedell's  case,  ii.  412,  424,  453  ;  iii.  354. 
Bedford  v.  British  Museum,  ii.  313. 
V.  Kelly,  i.  566. 
v.  McElherran,  i.  571,  603. 
V.  Terhune,  i.  498,  508,  509, 510, 
513,516,549,550,552,591. 
Bedford's  (Le  Couutee)  case,  ii.  431, 
433. 


TABLE   OF    CASES    CITED. 


XX  VU 


Beebe  v.  Swartwout,  iii.  4G8,  478. 
Beecher  v.  Baldv,  i.  349,  358,  359,  373, 
399,  400,  414. 
V.  Parmele,  i.  622. 
Beekman  v.  Bonsor,  iii.  618,  519,  521, 
522. 
V.  Frost,  iii.  320. 
V.  Kreamer,  ii.  366. 
V.  Saratoga,  &c.  R.  R.,  ii.  292. 
Beer  v.  Beer,  i.  461. 
Beers  v.  Beers,  i.  150. 

V.  St.  John,  i.  147. 
Beevor  v.  Luck,  ii.  20(3. 
Beklen  v.  Carter,  iii.  288,  289. 
V.  Meeker,  ii.  114. 
V.  Sevmour,  ii.  437,  438 ;  iii.  375, 
472,  492. 
Belding  v.  Manly,  ii.  112,  117. 
Belfour  v.  Weston,  i.  536,  538,  552. 
Belk  V.  Massey,  iii.  316,  320. 
Belknap  ;;.  Gleason,  ii.  185. 

V.  Trimble,  i.  684  ;  ii.  827,  357. 
Bell  V.  Ellis,  i.  592,  595. 

V.  Fleming,  ii.   148,   151,  152,  1^4, 

156. 
V,  Ingestre,  iii.  293. 
V.  Lonoworth,  iii.  137. 
V.  Mayor  of  New  York,  i.  125,  251, 
283,  297,  298,  300  ;  ii.  174,  175, 
212,  213,  224,  236,  255. 
V.  Nealy,  i.  243. 
V.  Scammon,  ii.  418,  436,  706,  707  ; 

iii.  372,  373,  375,  528. 
V.  Thomas,  ii.  146. 
V.  Twilight,  i.  120;  ii.  77  ;  iii.  339. 
V.  Woodward,  ii.  195;  iii.  385,386. 
Bell's  estate,  ii.  468. 
Bell  Co.  V.  Alexander,  i.  86  ;  iii.  517. 
Bellamy  v.  Bellamy,  ii.  483. 
Bellasis  ','.  Bnrbriche,  i.  445,  467. 
Bellinger  v.  Burial  Ground  Soc,  iii.  99, 

485. 
Bellock  V.  Rogers,  ii.  104. 
Bellows  V.  Copp,  iii.  191. 
Bells  V.  Gillespie,  ii.  005,  709. 
Belmont  v   Coman,  ii.  208,  209  ;  iii.  489. 

V.  O'Brien,  n.  183. 
Beloe  V.  Rogers,  ii.  255. 
Belton  i;.  Avery,  ii.  55. 
Bemis  v.  Driscoll,  i.  372. 

V.  Wilder,  i.  473,  474,  484. 
Bender  v.  Fromberger,  iii.  456. 
Benedict  v.  Bene<lict,  i.  634. 

V.  Bunnell,  i.  345,  35-3,  407. 
V.  Morse,  i.  612,  617. 
Benbam  v.  Rowe,  ii.  74,  75,  224. 
Benje  v.  Creagh,  iii.  135. 
Benner  v.  Evans,  i.  285. 
Bennet  v.  Bullock,  i.  6-59 ;  iii.  142. 
V.  Davis,  i.  169. 
V.  Westbeck,  iii.  341. 
V.  Williams,  iii.  332. 
Bennett  v.  Bittle,  i.  529,  532. 
V.  Brooks,  iii.  504. 
V.  Cliild,  i.  673. 


Bennett  i'.  Clemence,   i.  657,  659 ;  iii 
151. 

V.  Conant,  ii.  243,  269 ;  iii.  100. 

V.  Davis,  i.  165;  ii.  516. 

V.  Holt,  ii.  60. 

V.  Hopkinson,  i.  11. 

V.  Irwin,  iii.  380. 

V.  Robinson,  i.  628. 
Bennock  v.  Whipple,  i.  587  ;  ii.  54. 
Bensell  v.  Chancellor,  i.  455. 
Bensley  v.  Atwill,  iii.  294. 
Benthara  v.  Smith,  ii.  655. 
Bentley  v.  Long,  ii.  551. 

V.  Sill,  i.  531. 
Benson  v.  Aitkin,  i.  382,  407. 

V.  Bolles,  i.  498. 

V.  Miner's  Bank,  ii.  375. 
Benton  v.  Jones,  ii.  50. 
Benzein  v.  Robinett,  ii.  106. 
Berdan  v.  Sedgwick,  ii.  176. 
Berg  V.  Shipley,  iii.  317,  321. 

V.  Gardner,  i.  542. 
Bergen  v.  Bennett,  ii.  63,  69,  639,  662, 

663. 
Berger  v.  Duff,  ii.  663. 
Berkshire  M.  F.  Ins.  Co.  v.  Sturgis,  iii. 

292,  294. 
Berlin  v.  Burns,  i.  403,  417. 
Berly  v.  Taylor,  ii.  503. 
Bernal  v.  Hovious,  i.  573. 
Bernard  v.  Jennison,  ii.  52. 
Berridge  v.  Ward,  iii.  420. 
Berrien  v.  McLane,  ii.  513. 
Berry  v.  Anderson,  iii.  287,  293,  301,  303. 
V.  Billings,  iii.  362,  367,  437,  439. 
V.  Heard,  i.  154. 
V.  Mutual  Ins.  Co.,  ii.  88. 
V.  Roddin,  iii.  204. 
V.  Snyder,  iii.  414. 
V.  Williamson,  ii.  490. 
Berryman  v.  Kelly,  iii.  154. 
Bertie  v.  Abingdon,  i.  108. 
V.  Falkland,  ii.  9,  10. 
Bertram  v.  Curtis,  iii.  463. 
Besland  v.  Huvett,  ii.  88. 
Besley  v.  Lawrence,  ii.  215. 
Bessell  v.  Landsherg,  i.  609. 
Best  V.  Allen,  i.  408,  421. 
Bethlehem  v.  Annis,  ii.  66,  67,  119. 
Betsey  y.  Torrance,  iii.  331. 
Bettison  v.  Budd,  i.  556. 
Betts  v>.  June,  i.  461. 
Betz  V.  Huther,  ii.  122. 
Bevans  v.  Briscoe,  i.  135. 
Beverly  v.  Beverly,  ii.  414. 

V.  McBride,  iii.  141. 
Bevins  v.  Vinsant,  iii.  467. 
Bibb  ('.  Reid,  iii.  299. 
Bibby  V.  Carter,  ii.  3G0. 
Bickford  v.  Daniels,  ii.  55. 

V.  Page,  iii.  457,  470. 
Bicknell  v.  Bicknell,  ii.  85. 
Biddle  v.  Hussman,  i.  527. 

V.  Reid,  i.  538. 
Bigelow  I'.  Bush,  ii.  254. 


XXVIH 


TABLE    OF    CASES    CITED. 


Bigelow  V.  Collamore,  i.  505,  506,  543. 
V.  Foss,  iii.  83,  84. 
V.  Hnl)bard,  iii.  461. 
V.  Jones,  i.  77,  657. 
i:  Littlefield,  i.  079. 
V.  Risiriir,  i-  606. 
V.  Topliff;  ii.  43  ;  iii.  78,  319. 
V.  Willson,  ii.  102,  174. 
Bigler  v.  Fnrman,  i.  566,  567,  568. 
Bill  V.  Carleton,  ii.  402. 
Billings  1-.  Taylor,  i.  144,  208,  287. 

V.  Sprague,  ii.  214. 
Billington  v.  Welsh,  iii.  78,  317,  318. 
Bilson  V.  Manuf.  Ins.  Co.,  ii.  233. 
Bingliam  v.  Weiderwax,  iii.  492,  495. 
Bingham's  Appeal,  ii.  654. 
Binnev  r.  Cliapman,  i.  5-58. 
V.  Hull,  ii.  367,  373. 
Birch  V.  Wright,  ii.  101,  168,  170. 
Birckhead  v.  Cummings,  i.  614. 
Bird  V.  Bakei,  i.  440. 

V.  Christopher,  ii.  642. 
V.  Gardner,  i.  294. 
V.  Harris,  iii.  526. 
Birdsoll  v.  Phillips,  i.  609. 
Birlett's  Estate,  in  re,  ii.  468. 
Birmingham  ;•.  Anderson,  iii.  429. 
Bisbee  v.  Hall,  i.  466. 
Bishop  V.  Bedford  Charity,  i.  539. 
V.  Bishop,  i.  17. 
V.  Boyle,  i.  256. 
V.  Doty,  i.  575. 
i;.  Elliott,  i.  20. 
V.  Howard,  i.  602. 
V.  Hubbard,  i.  368. 
V.  Schneider,   ii.   147 ;   iii.  323, 
324. 
Bisland  v.  Hewitt,  i.  252,  276. 
Bissell  V.  Grant,  ii.  .540. 

V.  N.  Y.  Cent.  R.  R.,  iii.  420,  422. 
V.  Strong,  iii.  371. 
Bissett  V.  Bis.sett,  iii.  315. 
Bittenger  v.  Baker,  i.  135,  188. 
Bixler  v.  Savior,  iii.  484. 
Black  V.  Black,  i.  667. 

V.  Curran,  i.  88.3,  397. 

V.  Hills,  iii.  252. 

V.  Lamb,  iii.  287,  293. 

V.  Lindsay,  i.  658. 

V.  McAulay,  ii.  706. 

V.  Morse,  ii.  2i'3. 

V.  Shreve,  iii.  293,  294,  299,  302, 

304. 
V.  Woodrow,  iii.  239. 
Blackburn  v.  Gregson,  ii.  85,  90. 

V.  Warwick,  ii.  62,  63,  236. 
Blackmon  v.  Blackmon,  i.  322. 
Blackmore  v.  Boardnian,  i.  500. 
Blackstone  Bank  v.  Davis,  i.  80;  ii.  8. 
Blackwell  v.  Overby,  ii.  51. 
Blackwood  v.  Janes,  iii.  79,  84,  85. 
Blades  v.  Higgs,  i.  15  ;  iii.  3. 
Blagge  V.  Miles,  ii.  659,  665;  iii.  217. 
Blain  v.  Harrison,  i.  277,  303. 
V.  Stewart,  iii.  322,  324. 


Blaine's  Lessee  v.  Chambers,  iii.  388, 893. 
Blair,  Appellant,  ii.  142. 
V.  Bass,  ii.  118. 
V.  Claxton,  i.  5.33,  534. 
V.  Rankin,  i.  504. 
V.  Smith,  iii.  86,  88,  92,  144,  164. 
V.  Ward,  ii.  1.30,  148,  211,  219,  220. 
Blaisdell  r.  R.  Road,  i.  629,  632. 
Blake  v.  Clark,  iii.  388,  296. 
V.  Coats,  i.  574. 
V.  Fash,  iii.  299,  306. 
V.  Foster,  i.  454. 
V.  Nutter,  i.  667,  669. 
V.  Sanborn,  ii.  257. 
V.  Saimderson,  i.  524  ;  ii.  257 
V.  Tucker,  iii.  107,  110. 
V.  Williams,  ii.  121. 
Blakeley  v.  Colder,  i.  682. 
Blakemore  v-  Byrnside,  ii.  50. 
Blakeney  v.  Ferguson,  i.  224. 
Blaker  v.  Anscombe,  ii.  469. 
Blanchard  v.  Baker,  ii.  348. 

V.   Blanchard,   ii.    542,  545, 
551,  577,  579,  716;   iii. 
546. 
V.  Blood,  i.  3.30. 
V.  Bridges,  ii.  345,  372. 
V.  Brooks,  ii.   5-53,  577;  iii. 

96,  112,  448,  475,  529. 
V.  Colburn,  ii.  139. 
!;.Ellis,iii.  107,  109,110,111, 

493,  496. 
V.  Porter,  iii.  413. 
V.  Tyler,  i.  559  ;  iii.  286,  324. 
Bland  v.  Lipscombe,  ii.  300,  369. 
Blaney  v.  Bearce,  ii.  54,  100,  101,  106, 
162. 
V.  Hanks,  iii.  307. 
V.  Rice,  iii.  407,  409. 
Blankard  v.  Galdy,  i.  36. 
Blantin  v.  Whitaker,  i.  560. 
Bledsoe  v.  Doe,  ii.  199,  230. 

V.  Little,  iii.  198. 
Bleeker  v.  Smith,  i.  471,  482,  483. 
Blessinijs  v.  House,  iii.  68. 
Blethen  v.  DwinaH,  ii.  181.  183. 
Blewett  V.  Tregon'ning,  ii.  369. 
Bligh  V.  Brent,'i.  18. 
Blight  V.  Banks,  ii.  89,  90,  91 ;  iii.  228. 
V.  Rochester,  i.  558 ;  iii.  162. 
V.  Schenck,  iii.  303. 
Blight,  Lessee    of,    v.    Rochester,     ii 

92. 
Blin  V.  Pierce,  ii.  491. 
Bliss  V.  Am.  Bible  Soc,  iii.  514. 
V.  Ball,  iii.  155 
V,  Greeley,  ii.  355. 
V.  Kennedy,  iii.  388. 
V.  Rice.  ii.  369. 
V.  Whiting,  i.  29. 
Blitheman  v.  Blitlieman,  ii.  425 
Blivins  r.  Johnson,  i.  869. 
Block  V.  Isham,  ii.  285. 

V.  Pfaff,  iii.  157,  407,  408. 
Blockley  v.  Fowler,  ii.  73,  74. 


TABLE   OP   CASES   CITED. 


XXIX 


Blodgett  V.  Hildretli,  i.  646,  682 ;  li.  47G, 
477,  480,  502. 
V.  Wadliams,  ii.  129. 
Blodwell  V.  Edwards,  ii.  580. 
Blood  V.  Blood,  i.  196,  217,  273;  ii.  147, 
441 ;  iii.  151,  152,  319. 
V.  Wood,  iii.  150. 
Bloodgood  V.  Mohawk  &  H.  R.  R.,  ii. 

292 ;  iii.  213. 
Bloom  V.  Noggle,  ii.  145. 

V.  Van  Rensselaer,  ii.  68,  76,  81. 
Bloome  v.  Waldron,  ii.  510,  652,  655. 
Blossom  V.  Brightnian,  i.  655  ;  iii.  262. 
Blue  V.  Blue,  i.  355,  396 ;  ii.  178. 
Blue  Jacket  v.  Commissioners,  iii.  186. 
Blum  V.  Robertson,  i.  581. 
Blunt  V.  Gee,  i.  277. 
Blyer  v.  MoulioUand,  ii.  210,  215. 
Blyth  V.  Dennett,  i.  606. 
Board  v.  Board,  iii.  139. 
Board,  &c.  v.  Trustees,  &c.,  ii.  4. 
Boardman  v.  Dean,  iii.  292,  294,  370, 
378. 
V.  Osborn,  i.  525,  526. 
V.  Reed,  iii.  192,  193,  194, 

399,  426. 
V.  Wilson,  i.  508. 
Bodwell  V.  Webster,  ii.  44,  48,  50,  54. 
Bogardus  v.  Trinity  Church,  i.  76,  657  ; 

iii.  267. 
Boggs  V.  Anderson,  iii.  318. 

V.  Merced  Mining  Co.,  iii.  80, 188, 
198,  394. 
Bogie  V.  Rutledge,  i.  220. 
Bogy  V.  Shoab,  iii.  105,  107,  359. 
Boliannon  v.  Streshley,  ii.  493. 
Bohanon  c.  Walcot,  iii.  540. 
Boker  v.  Gregory,  ii.  235. 
Boling  V.  Ewing,  iii.  324. 
Bolivar  M'g  Co.  v.  Neponset  M'g  Co.,  ii. 

369 ;  iii.  53. 
Bolles  V.  Duff,  ii.  239. 
Bollinger  v.  Choteau,  ii.  182,  229,  230. 
Bolster  u.  Cushman,  i.  237. 
Bolton  V.  Ballard,  i.  229 ;  ii.  192. 
V.  Brewster,  ii.  108. 
V.  Carlisle,  iii.  247. 
V.  Landers,  i.  600. 
V.  Lann,  iii.  405. 
V.  Tomlin,  i.  614. 
Bomar  v.  Mullins,  i.  332. 
Bond  V.  Bond,  iii.  2-52. 

V.  Coke,  iii.  392,  441. 
V.  Fay,  iii.  398,  401,  405. 
V.  Rosling,  i.  453. 
V.  Swearingen,  iii.  20,  109. 
Bonham  v.  Galloway,  ii.  188. 
Bonithon  v.  Hockmore,  ii.  234. 
Bonnell  v.  Smith,  383. 
Bonner,  Petitioner,  i.  679. 

I'.  Kennebeck  Purchase,  i.  681. 
V.  Peterson,  i.  207,  275. 
Bonney  v.  Foss,  i.  5,  7,  148,  619. 
V.  Morrell,  iii.  429. 
V.  Smith,  ii.  69. 


Bonomi  v.  Backhouse,  ii.  360. 
Boody  V.  Davis,  ii.  43  ;  iii.  290,  294. 
Booker  v.  Anderson,  i.  408,  421 ;  ii.  175. 
V.  Gregory,  ii.  235. 
V.  Stivender,  iii.  306. 
Bool  V.  Mix,  i.  456,  457  ;  iii.  250. 
Boon  V.  Murphy,  ii.  91. 
Boone  v.  Boone,  i.  326. 

V.  Chiles,  ii.  485,492,  493,   514; 

iii.  323. 
V.  Moore,  iii.  263. 
Boos  V.  Gomber,  i.  341. 
Booth  V.  Adams,  i.  658, 
V.  Booth,  ii.  245. 
V.  Clark,  ii.  256. 
V.  Lambert,  i.  273. 
V.  Small,  iii.  134. 
V.  Starr,  iii.  469,  471,  473. 
V.  Terrell,  ii.  539. 
Boothby  u.  Vernon,  i.  178. 
Boothroyd  v.  Engles,  iii.  263,  271. 
Bopp  V.  Fox,  i.  201,  670. 
Borah  v.  Archers,  i.  678. 
Boraston's  case,  ii.  550,  563,  565,  579. 
Borden  v.  Vincent,  ii.  330. 
Bordley  v.  Clayton,  i.  236. 
Borel  V.  Rollins,  iii.  149. 
Borland  v.  Marsiiall,  i.  174. 
V.  Nichols,  i.  324. 
V.  Walrath,  iii.  327. 
Borst  V.  Empie,  iii.  434. 
Bossard  v.  VVhite,  iii.  319. 
Bostick  V.  Keizer,  ii.  489. 
Boston  V.  Binney,  i.  557,  588,  594. 

V.  Richardson,  iii.  137, 151,  416, 

419,  420,  422,  424. 
V.  Worthington,  iii.  472. 
Boston  Bank  v.  Chamberlin,  iii.  249. 
V.  Reed,  ii.  166. 
Iron  Co.  V.  King,  ii.  222,  236. 
&  Lowell  R.    R.   V.  Salem,  &c. 

R.  R.,  ii.  295,  296. 
&c.  R.  R.  V.  Haven,  ii.  229,  230, 

234. 
&c.  R.  R.  V.  Ripley,  593. 
W.  P.  Co.  V.  Boston,  &c.  R.  R., 
ii.  295,  299,  300,  369. 
Bostwick  V.  Atkins,  iii.  251. 
V.  Leach,  iii.  345. 
V.  Williams,  iii.  461,  468,  478. 
Boswell  V.   Goodwin,  ii.  163,  154,  155, 

156,  186. 
Bosworth  V.  Danzien,  iii.  407. 

V.  Sturtevant,  iii.  402. 
Botham  v.  Mclntier,  ii.  158,  260. 
Botsford  V.  Barr,  ii.  432,  476,  479,  480 
481. 
V.  Morehouse,  iii.  307. 
Bott  V.  Burnell,  iii.  231. 

V.  Perley,  iii.  211,  229. 
Botting  V.  Martin,  i.  604. 
Bottorf  V.  Conner,  ii.  89. 
Bourland  v.  Kipj),  ii.  122. 
Bourn  v.  Gibbs,  ii.  720. 
Bourne  v.  Bourne,  ii.  161. 


XXX 


TABLE   OF    CASE-.    CITED. 


Bours  V.  Zachariah,  iii.  255. 
BowcUtch  ('.  Banuelos,  ii.  612. 
Bowen  v.  Bowen,  ii.  16,  17. 
V.  Conner,  iii.  433. 
V.  Cooper,  iii.  120. 
f.  Team,  ii.  323. 
Bower  v.  Cooper,  ii.  497. 

i;.  Hill,  u.  3G'J.  _ 
Bowers  v.  Keesecker,  i.  205. 
V.  Oyster,  ii.  84. 
V.  Porter,  ii.  567. 
Bowie  V.  Berry,  i.  205.  289,291 ;  ii.  471. 
Bowles's  (Lewis)  case,  i.  loA,  155,  197. 
Bowman  v.  Lobe,  ii.  425,  544. 
V.  Middleton,  iii.  213. 
V.  Norton,  i.  346,  381,  406,  407, 
V.  Smiley,  i.  378,  402. 
Bowne  v.  Potter,  i.  239. 
Bowser  v.  Bowser,  i.  563. 
Box  V.  Stanford,  iii.  237. 
Boxlieimer  v.  Gunn,  ii.  187. 
Boyce  v.  Coster,  i.  668. 

V.  Owens,  iii.  257. 
Boyd  r.  Beck,  ii.  169,  183,  187. 
V.  Blankman,  ii.  483. 
j;.  Cudderback,  i.  408,  409  ;  ii.  233 
V.  Ellis,  ii.  267. 
V.  Graves,  iii.  89. 
V.  Harris,  ii.  183. 
V.  Longworth,  iii.  210. 
V.  McLean,  ii.  394,  432,  480,  481. 
Boydell  v.  Walthall,  ii.  411. 
Boyer  v.  Smith,  i.  562. 
Boyers  v.  Elliott,  i.  668. 

V.  Newbanks,  i.  273,  275. 
Boyle  V.  Tamlyn,  ii.  367. 
BovLston  V.  Carver,  iii.  428. 
Boynton  v.  Champlin,  ii.  89,  90,  91. 
V.  Finnall,  i.  338. 
V.  Hoyt,  ii.  492,  514. 
V.  Peterborough,  iii.  7. 
V.  Kees,  iii.  826,  368. 
V.  Sawyer,  i.  220. 
Bozon  V.  Williams,  ii.  83. 
Brace  u.  Yale,  ii.  352 ;  iii.  388,  395. 
Bracebridge  v.  Buckley,  ii.  22. 
Bracket,  Petitioner,  iii.  152,  155,  156. 
V.  Bauni,  i.  2-52. 
V.  Goddard,  i.  13  ;  iii.  391. 
7).  Norcross,  i.  657. 
V.  Ridlon,  iii.  326. 
V.  Waite,  i.  334. 
Brackett  v.  Lubke,  i.  540. 
Bradbee  y.  Christ's  Hospital,  ii.  364. 
Bradbury  v.  Grinsell,  ii.  329,  330. 

V.  Wright,  ii.  274. 
Bradford  v.  Cressy,  iii.  411,  423. 
V.  Foley,  ii.  572. 
V.  Randall,  iii.  272,  274. 
Bradish  v.  Gibbs,  ii.  638,  654. 

V.  Schenck,  i.  572,  575. 
Bradley  v.  Chester  Valley  R.  R.,  ii.  69, 
70,  79.  80,  239,  249. 
V.  Fuller,  ii.  100,  162,  168. 
V.  Ge:)rge,  ii.  202,  207. 


Bradley  v.  Holdsworth,  i.  18. 
V.  Peixoto,  i.  80  ;  ii.  8. 
V.  Rice,  iii.  410,  417. 
V.  Snyder,  ii.  174, 176,  229,  255. 
V.  Wilson,  iii.  407. 
Bradner  v.  Faulkner,  i.  11. 
Bradshaw  v.  Callaghan,  i.  304,  681,  682. 
Bradstreet  v.  Clark,  i.  481 ;  ii.  7,  19. 

V.  Huntington,  i.  58;  iii.  129, 
139,  141,  144,  160. 
Brady  ;;.  Peiper,  i.  547,  549. 

V.  Waldron,  ii.  104,  135,  169. 
Bragg  V.  Massie,  ii.  50. 
Brainard  v.   Boston   &  N.  Y.  Central 
R.  R.,  iii.  395,  421,  485. 
V.  Colchester,  i.  195. 
V.  Cooper,  ii.  174,  239,  254. 
Braintree  v.  Battles,  i.  600. 
Brakely  v.  Sharp,  ii.  314,  315,  3.33. 
Braman  v.  Bingham,  iii.  283,  300,  301. 
V.  Dowse,  ii.  208,  209. 
V.  Stiles,  ii.  434,  647. 
Bramlet  v.  Bates,  ii.  705. 
Branch  v.  Doane,  ii.  330. 
Brandon  v.  Robinson,  ii.  8. 
Brandt  v.  Foster,  iii.  447,  448,  453,  455, 
474,  492,  494,  497. 
V.  Ogden,  iii.  140,  151,  407. 
Branger  v.  Manciet,  i.  490. 
Branham  v.  Mayor,  &c.,  iii.  68,  380. 
Brannan  v.  Oliver,  ii.  524. 
Brant  v.  Robertson,  ii.  48. 
Brantley  v.  West,  ii.  50. 
Bratt  V.  Bratt,  i.  447. 
Brattle  Street  Church  v.  Grant,  i.  89  ; 
ii.  23,  24,  25,  26,  27,  28, 435,  545,  583, 
623,  632,  683,  699,  700,  703,  727. 
Bratton  v.  Clavvson,  i.  25. 
Brawner  v.  Stani]),  ii.  478,  493. 
Braxton  v.  Coleman,  i.  289,  290. 
Braybroke  v.  Inskip,  ii.  140,  489. 
Braybrook  v.  Attorney-General,  ii.  658. 
Brazee  v.  Lancaster  Bank,  ii.  150. 
Breckenridge  v.  Auld,  ii.  55. 

V.  Brooks,  ii.  128,  234,235. 
V.  Ormsby,    ii.     106 ;    iii. 
132,  249. 
Bree  v.  Holbeck,  ii.  116. 
Breed  v.  Eastern  R.  Road,  ii.  165. 

V.  Pratt,  iii.  512. 
Breeding  v.  Taylor,  i.  519. 
Brennan  v.  Wliitaker,  ii.  157. 
Brent's  case,  ii.  405,  611. 
Bressler  v.  Kent,  iii.  248,  2-53. 
Brett  V.  Cumberland,  i.  458,  496. 
Brettan  v.  Fox,  i.  387. 
Brewer  v.  Boston  &  Wor.  R.  R.,  iii.  81, 
86. 
V.  Connell,  i.  217,  245;  iL  499. 
V.  Conover,  i.  595. 
V.  Dyer,  i.  509,  548,  549. 
V.  Hardy,  ii.  417,  421,  438,  441, 

443  ;  iii.  372,  373. 
V.  Knapp,  i.  603. 
V.  Marshall,  ii.  286,  309. 


TABLE   OF   CASES   CITED. 


XXXI 


Brewer  v  McGowen,  i.  480. 
V.  Thorp,  i.  439. 
V.  Vauarsdale,  i.  295,  300. 
V.  Wall,  i.  391,  416,  417,  418. 
Brewster  v.  Hill,  i.  46t). 

V.  Kitchell,  ii.  18. 
V.  Kitchin,  ii.  283. 
V.  McCall's  Devisees,  iii.  525. 
V.  Power,  ii.  531. 
Brice  v.  Smitli,  i.  100. 
Brick  V.  Getsinger,  ii.  136. 
Brickett  v.  Spotfbrd,  iii.  130. 
Bridge  v.  Eggleston,  iii.  333,  334,  367. 
V.  Hubbard,  ii.  176. 
V.  Wellington,  iii.  367. 
Bridger  v.  Pierson,  iii.  433,  441,  443. 
Bridges  v.  Purcell,  i.  629,  631,  633. 
Bridgewater  v.  Bolton,  i.  70,  83,  85. 
Bridgford  v.  Riddel,  iii.  336. 
Bridgliam  v.  Tileston,  i.  509. 
Briggs  V.  Fish,  ii.  43. 
V.  Hall,  i.  532. 
V.  Hill,  ii.  92. 
V.  Oxford,  Earl  of,  ii.  70. 
V.  Thompson,  575. 
Brigden  v.  Carhartt,  ii.  150,  180. 
Brighaiu  v.  Eveleth,  i.  661. 
V.  Porter,  ii.  47. 
V.  Shattuck,  ii.  15;  iii.  522. 
V.  Smith,  ii.  306  ;  iii.  387. 
V.  Winchester,  i.  226  ;   ii.  35, 
119,  140;  iii.  -509,  -538. 
Bright  V.  Walker,  ii.  319,  320,  321,  325, 
327,  329. 
u.Boyd,  7. 
Briglitman  v.  Brightman,  ii.  683. 
Brimmer  v.  Prop'rs  Long  Wharf,    iii. 

128,  140,  144,  151. 
BrinckerhofF y.  Everett,  i.  422. 

V.  Lansing,  ii.  187  ;  iii.  78, 
79. 
Bringloe  v.  Goodson,  ii.  688,  645,  646. 
Brinkerhoff  v.  Marvin,  ii.  153,  154. 
Brinley  v.  Mann,  iii.  278,  279. 
V.  Shaw,  iii.  278. 
V.  Whiting,  iii.  329. 
Brisbam  v.  Stoughton,  ii.  70,  79. 
Briscoe  v.  Bronough,  ii.  88. 
V.  King,  ii.  49. 
V.  McGee,  i.  653,  665. 
V.  Power,  ii.  178,  200,  203,  204, 
208. 
Bristow  V.  Warde,  ii.  668,  673. 
Brittin  a.  Handy,  i.  646,  686. 
Britton  v.  Twining,  i.  101. 
Broadbent  v.  Ramsbotham,  ii.  351,  354, 

355,  357. 
Brobst  V.  Brock,  ii.  110,  171. 
Brock  V.  Eastman,  i.  657,  681. 
Brocket  v.  Foscue,  iii.  376. 
Brodie  v.  Stephens,  ii.  538. 
Broman  v.  Bingham,  iii.  283. 
Bromfield  v.  ("rowder,  ii.  579 ;  iii.  546. 
Brouson  v.  Paynter,  iii.  362. 

V.  Coffin,  ii.  283,  367 ;  iii.  462. 


Brounston  v.  Robinson,  ii.  164. 
Brook  V.  Brook,  i.  214. 
Brookings  v.  White,  ii.  46,  47 ;  iii.  253. 
Brooks  V.  Barrett,  iii.  512. 

V.  Brooks,  iii.  439. 

V.  Bruyn,  iii.  155. 

V.  Chaplin,  iii.  326. 

V.  Dalrymple,  iii.  335. 

V.  Everett,  i.  195,  204. 

V.  Fowle,  ii.  477. 

V.  Golster,  i.  29. 

V.  Hyde,  i.  353,  354,  406. 

V.  Jones,  i.  83. 

V.  Ruff,  ii.  188. 
Broome  v.  Beers,  ii.  258. 
Brossart  v.  Corlel,  ii.  336. 
Brothers  v.  Brothers,  ii.  524. 

V.  Porter,  ii.  497. 
Broughton  v.  Longley,  ii.  4.34,  466. 
V.  Randall,  i.  199,  219. 
Brouncker  v.  Bagot,  ii.  725. 
Brouvver  v.  Jones,  ii.  303. 
Brown  v.  Armistead,  ii.  662. 

V.  Bailey,  i.  655. 

V.  Barkhani,  ii.  64. 

V.  Bartee,  ii.  79. 

V.  Bates,  i.  665, 671 ;  ii.  124,  140. 

V.  Blydenburgh,  ii.  121. 

V.  Bowdoin,  iii.  389. 

V.  Bowen,  iii.  74,  70,  78,  83. 

V.  Bragg,  i.  436,  477,  479,  603. 

V.  Bridges,  i.  154,  589 ;  iii.  161. 

y.  Brown,  i.   682;   ii.  503;    iii. 
541. 

V.  Chadbourne,  iii.  411,  413. 

V.  Clements,  iii.  199. 

V.  Cockerell,  iii.  64,  135,  160. 

V.  Combs,  ii.  169,  503,  520 ;  iii. 
204. 

V.  Concord,  iii.  521. 

V.  Coon,  i.  408,  409,  423;  iii.  71. 
115. 

V.  Cram,  ii.  Ill,  112. 

V.  Dean,  ii.  61. 

V.  Dewey,  ii.  46,  59. 

V.  Doe,  ii.  484,  527. 

V.  Duncan,  i.  291. 

V.  Dwelley,  ii.  475. 

V.  Dysinger,  i.  556. 

V.  Frost,  ii.  239. 

V.  Gibbs,  ii.  97. 

V.  Higgs,  iii.  535. 

V.  Hugle,  646,  6.56, 

V.  Holyoke,  ii.  44. 

V.  Huger,  iii.  405. 

V.  Jackson,  iii.  96,  359,  475,  477. 

V.  Johnson,  ii.  180. 

V.  Keller,  i.  355,  505,  699,  600. 

V.  Kelsey,  iii.  534. 

V.  King,    i.    59 ;    iii.    144,   161 
162. 

V.  Kite,  i.  517. 

V.  Lamphear,  iii.  382. 

V.  Laphani,  i.  221,  232,  294;  ii. 
192,  195,  212. 


xxxu 


TABLE   OP   CASES   CITED. 


Browu  V.  Lawrence,  ii.  539,  641,   548, 
5G0;  iii.  17. 

V.  Leach,  ii.  112. 

V.  Liiifoln,  i.  573,  675. 

V.  Lynde,  ii.  479. 

V.  I\icCoriniclt,  iii.  109. 

V.  McCune,  iii.  71. 

V.  McMullen,  079. 

V.  Meredith,  .302,  304. 

V.  Metz,  iii.  469,  471. 

V.  Moore,  662. 

V.  Nevitt,  ii.  252. 

V.  Nichols,  iii.  395. 

V.  Nickle,  ii.  55,  59;  iii.  395. 

V.  Pentz,  ii.  363. 

V.  Powell,  i.  517. 

V.  Quilter,  i.  536. 

V.  Keynoids,  iii.  299. 

V.  Kobitis,  i.  18 ;  ii.  360. 

V.  Saltonstall,  iii.  .399. 

V.  Simons,  ii.  120,  130,  181,  206, 
211. 

V.  Snell,  ii.  133,  166. 

V.  Staples,  iii.  473. 

V.  Stewart,  ii.  110. 

V.  Tiiurston,  i.  584  ;  iii.  292. 

V.  Throckmorton,  iii.  200. 

V.  Tomlinson,  iii.  487,  490. 

V.  Turner,  i.  683. 

V.  Tyler,  ii.  41,  249. 

V.  Vanlier,  ii.  89,  93. 

V.  Veazie,  iii.  230. 

V.  Wellington,  i.  662. 

V.  Wenliam,  i.  63. 

V.  Willey,  iii.  403. 

V.  Williams,  i.  256. 

V.  Windsor,  ii.  361. 

V.  Wood,  i.  59,  656 ;  iii.  528. 

V.  Worcester  Bank,  ii.  174,  206. 

V.  Wright,  ii.  51. 
Browne  v.  Browne,  iii.  547. 

V.  Kennedy,  iii.  410. 
Brownell  v.  Brownell,  i.  681. 
Browning  v.  Wright,  iii.  487. 
Rrownson  v.  Hull,  i.  332,  672. 
Brownston  r.  Robinson,  ii.  164. 
Browns  word  c.  Edwards,  ii.  694 
Bruce  v.  Bonney,  ii.  190. 
V.  Luke,  iii.  96,  106. 
V.  Perry,  iii.  322. 

V.  Wood,  i.  181,  333,  674 ;  iii.  97, 
257. 
Brudenell  v.  Elwes,  ii.  581,  668. 
Brudnell  v.  Roberts,  i.  561,  567. 
Brumfield  v.  Palmer,  ii.  92. 
Brundage  v.  Missionary  Society,  ii.  254. 
Brundred  v.  Walker,  ii.  255;  iii.  110. 
Brunton  v.  Hall,  ii.  321,  334. 
Brush  V.  Kinsley,  ii.  92. 

V.  Ware,  iii.  198,  200,  327. 
Bryan  o.  Atwater,  iii.  136. 

V.  Batcheller,  i.  243. 

V.  Bradley, i.  57  ;  ii.  438, 439, 443 ; 
iii.  308,  373. 

V.  Butts,  ii.  103. 


Bryan  v.  Cowart,  ii.  60,  54. 
V.  Duncan,  ii.  625. 
V.  Ilyre,  iii.  542. 
V.  Ramirez,  iii.  315. 
V.  Wash,  iii.  297. 
V.  Wcems,  ii.  4'J3. 
V.  Whistler,  ii.  303. 
Bryant  v.  Crosby,  ii.  52. 

V.  Damon,  ii.  120,  123,  207. 
V.  Erskine,  ii.  12,  65,  66,  G7,  207 
V.  Hendricks,  ii.  480. 
V.  Russell,  ii.  503,  619. 
Brydges  v.  Brydges,  ii.  504,  514,  616, 

617. 
Bryson  v.  Campbell,  i.  192. 
Bubier  v.  Roberts,  i.  317,  323,  325,  3.33. 
Biiccleuch  V.  Metropolitan  R.  R.,  ii.  368. 
Buchan  v.  Sumner,  i.  667,  670. 
Buchanan  w.  Monroe,  ii.  161,  254. 
Buchannan  v.  Moore,  iii.  426. 
V.  Shetter,  i.  167. 
Buchannan's  Appeal,  iii.  530. 
Buck  V.  Conlogue,  i.  422. 
V.  Pickwell,  iii.  345. 
V.  Pike,  i.  543. 
V.  Sanders,  ii.  140. 
V.  Sherman,  ii.  164. 
V.  Swazey,  ii.  477,  482. 
Buckingham  y.  Nelson,  i.  400. 
Buckinghamshire  v.  Drury,  i.  314,  816, 

317,  320. 
Buckle  V.  Mitchell,  iii.  337. 
Buckley  v.  Buckley,  i.  22,  25,  670  ;  iii. 

18. 
Bucklin  v.  Bucklin,  ii.  49. 
Buckout  V.  Swift,  i.  8,  138;  ii.  104. 
Buckwortb  f.  Thirkell,  i.  93,  167,  171, 

172,  263 ;  ii.  624,  683. 
Budd  I}.  Brooke,  iii.  367. 

V.  Busti,  ii.  93. 
Buell  V.  Cook,  i.  451. 
Buffalo  R.  R.  V.  Brainard,  iii.  212,  213. 
Butfum  V.  Buffum,  i.  669. 

V.  Green,  iii.  288,  292,  371. 
Buist  V.  Dawes,  ii.  541. 
Bulkley  v.  Dolbeare,  i.  154. 
Bull  (-."Bull,  iii.  635. 
V.  Cliurch,  i.  324. 
r.  Conroe,  i.  432. 
V.  Kingston,  ii.  720,  724. 
V.  Sykes,  ii.  41. 
BuUard  l:  Bowers,  i.  220,  221,  229. 
V.  Briggs,  iii.  376. 
V.  Harrison,  ii.  333,  3.38. 
Bullen  V.  Runnels,  ii.  327,  373. 
Bullitt  (.'.  Taylor,  iii.  292,  336,  336. 
Bullock  V.  Bennett,  ii.  700. 
V.  Dommitt,  i.  636. 
V.  Fincli,  i.  274. 
V.  Waterman,  ii.  606. 
V.  Wilson,  iii.  194,  413. 
Bulwer  v.  Buhver,  i.  135. 
Bumpus  V.  Platner,  ii.  485,  514 ;    iii 

339. 
Bunce  v.  Reed,  ii.  77. 


TABLE   OP    CASES   CITED. 


XXXlll 


Bunch  V.  Bnnch,  i.  335. 
Bunker  v.  Locke,  i.  364 ;  ii.  136. 
Bunn  V.  Winthrop,  iii.  338. 
Bunton  v.  Richartlson,  i.  612,  613. 
Burbank  v.  Day,  i.  278. 

V.  nilsbury,  ii.  281,  285,  286 ; 

iii.  462. 
y.  Whitney,  ii.  719,  720;  iii. 
517. 
Burch  V.  Carter,  iii.  328. 
Burcliard  v.  Frazier,  ii.  177. 

V.  Hubbard,  iii.  110. 
Burd  V.  Dansdale,  i.  181. 
•       Burden  v.  Thayer,  i.  477,  518,  519 ;  ii. 
137,  288,  743. 
Burdett  v.  Chiy,  ii.  118,  122,  151. 

V.  Spilsbury,  ii.  655. 
Burdick  v.  Heivley,  iii.  86. 
Burge  V.  Smith,  i.  246,  250. 
,    Burger  i".  Potter,  ii.  91,  94. 
Burgess  v.  Gray,  i.  540 ;  iii.  159. 

V.  Wheate,  ii.  93,  387,  388,  390, 
400,  488,  490,  494,  499. 
Burhans  ;;.  Burhans,  i.  683. 
Burk  V.  Brown,  iii.  260. 
V.  Gleason,  i.  426. 
V.  Mollis,  i.  5,  30,  640. 
Burke  v.  Barron,  i.  187,  191. 
V.  Grav,  ii.  91. 
V.  Millen,  ii.  125. 
V.  Niles,  iii.  417. 
Burkhalter  v.  Ector,  iii.  324. 
Burleigh  v.  Clough,  ii.  721. 
Burlingame  v.  Robbins,  ii.  88. 
Burlington   University   v.  Barrett,   iii. 

603. 
Burnap  v.  Cook,  i.  410. 
Burnell  v.  Martin,  ii.  245. 
Burnes  v.  McCubbin,  i.  479. 
Burnet  v.  Denniston,  ii.  77,  150,  174. 
Burnett  v.  Caldwell,  i.  594. 

V.  Lynch,  i.  486,  494 ;  iii.  312. 
V.  Pratt,  i.  671 ;  ii.  129, 143,  2.57. 
V.  Thompson,  i.  467  ;  iii.  408. 
V.  Walker,  i.  386. 
Burnham  v.  Chandler,  iii.  319. 
Burnley  v.  Stevenson,  iii.  238. 
Burns  v.  Bryant,  i.  607. 

V.  Cooper,  i.  519,  574. 

V.  Keas,  i.  385. 

i;.  Lynch,  i.249,  252,  399 ;  iii.  127, 

240,  241,  242,  280,  286. 
V.  Taylor,  u.  93. 
V.  Thayer,  i.  358. 
Buxnside  v.  Merrick,  i.  201,  669,  670. 
V.  Terry,  i.  384,  407. 
V.  Twichell,  i.  23 ;  ii.  134, 157. 
V.  Weightman,  i.  135. 
Burr  V.  Beers,  ii.  208,  210. 

V.  Stenton,  i.  454. 
Burr's  Ex'ors  v.  Smith,  iii.  517,  518. 
Burrell  v.  Burrell,  iii.  100. 
Burriil  v.  Shiel,  ii.  608,  611. 
Burris  v.  Page,  i.  194. 
Burrows  v.  Gallup.,  ii.  367 ;  iii.  130. 


Burt  V.  Herron,  ii.  506. 
V.  llurlburt,  i.  329. 
V.  Merchant's  Ins.  Co.,  iii.  213. 
V.  Kicker,  ii.  141. 
Burton  v.  Barclay,  i.  547. 
V.  Baxter,  ii.  121. 
t;.  Hintrager,  ii.  107,  141. 
V.  Lies,  ii.  240. 
V.  Murphy,  i.  658. 
V.  Reeds,  iii.  109,  492,  498. 
V.  Scherpf,  i.  635. 
V.  Wheeler,  ii.  214. 
Bush  V.  Bradley,  i.  174. 
V.  Bush,  ii.  523. 
V.  Cooper,  ii.  187. 
V.  Marshall,  iii.  92,  105,  109. 
V.  Peru  Bridge  Co.,  ii.  292,  297. 
Bush's  Appeal,  ii.  468,  490,  491,  497.  _^ 
Bushnell  v.  Proprietors,  &c.,  ii.  345 ;  iii 

391. 
Buskin  v.  Edmunds,  i.  520,  522. 
Busse,  Estate  of,  i.  346. 
Bussey  v.  Page,  ii.  134,  135. 
Bussman  v.  Gunster,  i.  461,  537. 
Bustard  v.  Coulter,  iii.  4-39. 
Butcher  v.  Butcher,  i.  619,  621. 
Butler  V.  Eliot,  ii.  220. 
V.  Gale,  iii.  461. 
i;.  Godley,  ii.  515. 
V.  Ladue,  ii.  68,  76,  260. 
V.  Little,  iii.  529. 
V.  Page,  ii.  100,  157. 
V.  Porter,  i.  686. 
r.  Rojs,  i.  656 ;  iii.  262. 
V.  Seward,  ii.  216;  iii.  109. 
Butler  &  Baker's  case,  iii.  290,  297,  302, 

305,  309,  310. 
Butrick  v.  Wentworth,  ii.  71. 
Butterfield  v.  Baker,  i.  575. 

u.  Beall,  i.  180, 182;  iii.  238, 
279,  "480. 
Butts  V.  Francis,  iii.  231. 
Buxton  V.  iJearborn,  i.  361. 
Buzby's  Appeal,  ii.  546. 
Byrane  v.  Rogers,  i.  480,  481. 
Byrne  v.  Beeson,  i.  559. 


c. 


Cabot  V.  Christie,  iii.  492. 

Cabun  v.  Mulligan,  i.  421,  422. 

Cabunne  v.  Lindell,  iii.  199. 

Cadell   V.  Palmer,  i.  110,  439;  ii.  632, 

683,  703. 
Cagel  V.  Mickow,  i.  359. 
Cagger  v.  Lansing,  iii.  238,  303. 
Ca'hil  V.  Palmer,  iii.  134. 
Cahoon  v.  Laffiin,  ii.  174. 
Caines  v.  Grant,  ii.  482. 
Cains  v.  Jones,  ii.  454. 
Cairns  v.  Chabert,  i.  125. 
V.  Colburn,  ii.  474. 


XXXIV 


TABLE    OP   CASES   CITED. 


CalderwooJ  v.  Pjser,  i.  561. 
Caldwell  v.  Center,  iii.  429. 

V.  Copeland,  ii.  375,  377. 
V.  Fulton,  i.  18 ;  ii.  375,  876, 
377,   378;    iii.    132,    308, 
382,  393,  406. 
V.  Harris,  i.  558. 
V.  Kirkpatrick,  iii.  448,  469. 
V.  Taggart,  ii.  250. 
Calhoun  v.  Cook,  iii.  134. 

V.  Curtis,  i.  662,  663. 
V.  McLindon,  i.  347. 
Calk  V.  Stribling,  iii.  406,  410. 
Calkins  v.  Calkins,  ii.  97,  182. 
Call  V.  Becker,  i.  681,  682. 
Callaway  i'.  Hearn,  iii.  37-6. 
Callender  v.  Marsh,  ii.  3-59. 

V.  Woodrutf,  iii.  97. 
Calloway  v.  Doe,  iii.  187. 
Calthorp's  case,  ii.  394. 
Calvert  v.  Aldrich,  i.  663,  664 ;  ii.  365. 

V.  Bradley,  i.  523. 
Cambridge  v.  Lexington,  i.  213. 

Valley  Bank  v.  Delane,  iii. 
328. 
Cameron  v.  Irwin,  ii.  77,  129. 
V.  Little,  i.  525,  589. 
V.  Mason,  ii.  93. 
Camley  v.  Stansfield,  i.  562. 
Camp  V.  Coxe,  ii.  163. 
V.  Pulver,  i.  484. 
Campall  v.  Shaw,  i.  459. 
Campau  v.  Godfrey,  i.  656 ;  iii.  262. 

V.  Barnard,  i.  688. 
Campbell  v.  Adair,  i.  349,  360,  888. 
V.  Arnold,  i.  589. 
V.  Ayers,  i.  348. 
V.  Baldwin,  ii.  91. 
V.  Bemis,  i.  338  ;  ii.  254  ;  iii. 

253. 
V.  Campbell,  i.  657. 
V.  Dearborn,  ii.  50. 
V.  Knights,  iii.  210. 
V.  Leach,  ii.  640. 
V.  Lewis,  i.  499. 
V.  Loader,  i.  435,  617. 
V.  Macomb,  ii.  234. 
V.  McCoy,  i.  63.5. 
j;.  McManus,  i.  362. 
V.  Mesier,  ii.  365. 
V.  Murphy,  i.  277,  283,  288, 

289. 
V.  Penn.  Life  Ins.  Co.,  ii.  524. 
V.  Proctor,  i.  587. 
V.  Eawdon,  iii.  510. 
V.  Sandys,  i.  122. 
V.  Stetson,  i.  516. 
j;.  Vedder,  ii.  114,  194. 
V.  Wilcox,  iii.  239. 
V.  Wilson,  ii.  318. 
Campbell's  Appeal,  i.  209. 
Canal  Appraisers  v.  People,  iii.  414,  415. 
Canal  Commissioners  v.  People,  iii.  413, 

416,  417. 
Canal  Co.  v.  Railroad  Co.,  ii.  12. 


Canal  Trustees  v.  Havens,  iii.  421. 
Canby  v.  Porter,  i.  181. 
Candler  v.  Lunsford,  iii.  146. 
Canedy  v.  Marcy,  iii.  381,  383. 
Cannan  v.  Hartley,  i.  612. 
Canning  v.  Pinkham,  iii.  292,  294. 
Cannon  v.  White,  iii.  187. 
Capen  v.  Peckham,  i.  21,  25. 

V.  Kichardson,  ii.  46,  432. 
Capers  v.  McKee,  ii.  338. 
Capner  v.  Farmington  Mining  Co.,  ii. 

136. 
Caraway  v.  Chancy,  iii.  408. 
Carbrey  v.  Willis,  ii.  318 ;  iii.  157,  408, 

429. 
Carey  v.  Baughn,  iii.  540,  542. 
V.  Bishop,  i.  19. 
V.  Rawson,  ii.  55. 
V.  Wilcox,  iii.  120. 
Cargill  V.  Sewall,  i.  156. 
Carleton  v.  Redington,  i.  631,  632,  633. 
Carlisle  v.  Cooper,  ii.  327,  330,  331,  339; 
ui.  140. 
V.  Mayor  of  Blamire,  ii.  169. 
Carll  V.  Butman,  i.  231,  299,  300;  ii. 

214. 
Carman  v.  Johnson,  iii.  194,  197,  199. 
Carmichael  v.  Carmichael,  i.  266. 
Carpenter  v.  Allen,  ii.  104. 

V.  Brenham,  ii.  109. 
V.  Buller,  iii.  91. 
V.  Carpenter,  ii.  106. 
V.  Colins,  i.  587. 
V.  Dexter,  iii.  314,  322,  826. 
V.  Fairservice,  iii.  246. 
V.  Koons,  ii.  210 
V.  Longan,  ii.  247. 
V.  Millard,  i.  71 ;  iii.  38b. 
V.  Muren,  iii.  334. 
V.  Prov.  Ins.  Co.,  ii.  231 
V.  Smith,  ii.  619. 
V.  Thompson,  i.  558. 
V.  Weeks,  i.  23-5. 
Carpentier  v.  Thurston,  iii.  82. 
V.  Webster,  i.  6.57. 
V.  Williamson,    ii.   251 ;    iii. 
359. 
Carr  v.  Caldwell,  i.  406. 
V.  Carr,  ii.  51. 
V.  Foster,  ii.  327,  341. 
V.  Hobbs,  ii.  93. 
V.  Holbrook,  ii.  55. 
V.  Hoxie,  iii.  305. 
Carradine  v.  O'Connor,  ii.  76,  261! 
Carrig  v.  Dee,  ii.  347. 
Carrington  v.  Roots,  i.  13. 
Carroll  v.  Hancock,  ii.  552,  613. 
V.  Norwood,  iii.  397,  408. 
V.  SafEord,  iii.  197. 
Carson  v.  Baker,  i.  590. 
V.  Blazer,  iii.  413. 
V.  Coleman,  iii.  212. 
V.  Murray,  i.  252. 
V.  Phelps,  ii.  506  ;  iii.  239,  283. 
Carter  v.  Burr,  iii.  489. 


TABLE   OF    CASES   CITED. 


XXXV 


Carter  v.  Carter,  ii.  51 ;  iii.  91. 
V.  Champion,  iii.  78,  319. 
V.  Goodiu,  i.  230. 
V.  Hammett,  i.  524. 
V.  Hunt,  ii.  549. 
r.  McMichael,  ii.  606. 
V.  Parker,  i.  235,  291. 
V.  Bockett,  ii.  230. 
V.  Spencer,  iii.  198. 
V.  Thomas,  iii.  588. 
V.  Warne,  i.  524. 
V.  Williams,  i.  175. 
Cartwright  v.  Cartwright,  iii.  512. 
V.  Gardner,  i.  471,  484. 
Caruthers  i'.  Caruthers,  i.  316,  319. 

V.  Humphrey,  ii.  103,  173. 
Carver  v.  Jackson,  i.  438  ;  ii.  565  ;  iii. 
100. 
V.  Miller,  i.  664. 
Carwardine  v.  Carwardine,  ii.  617,  620, 

705. 
Cary  v.  Daniels,  u.  350, 351 ;  iii.  460. 
V.  Prentiss,  ii.  187. 
V.  Tice,  i.  353,  407. 
V.  White,  u.  115,  145. 
V.  Whitney,  iii.  191,  204,  205. 
V.  Wilcox,  iii.  120. 
Casborne  v.  Scarfe,  ii.  96, 140, 142,  161. 
Case  V.  Benedict,  iii.  98. 

V.  Phelps,  iii.  335,  336. 
Casey  v.  Buttolph,  ii.  195. 
V.  Gregory,  i.  563. 
V.  Infoes,  iii.  49. 
V.  King,  i.  586. 
Cason  V.  Hubbard,  i.  246 ;  iii.  252. 
Casporus  v.  Jones,  i.  280. 
Cass  V.  Martin,  i.  231,  294,  297. 

V.  Thompson,  i.  200. 
Cassel  I'.  Ross,  i.  384. 
Casselman  v.  Packard,  i.  365. 
Castle  V.  Dod,  ii.  416,  428. 

V.  Palmer,  i.  399,  413,  430. 
Castleman  v.  Belt,  ii.  137. 
Caswell  I'.  Districh,  i.  574,  575. 
Cates  V.  Wadlington,  iii.  413. 
Catham  v.  State,  iii.  48. 
Cathcart  v.  Bowman,  iii.  459. 

V.  Robinson,  i.  37;  iii.  337. 
Catlin  V.  Hurlburt,  iii.  449,  455,  493. 
V.  Kidder,  i.  656. 
V.  Milner,  i.  330. 

V.  Ware,  i.  247,  288,  291 ;  iii.  257, 
258,  266. 
Cator  V.  Pembroke,  ii.  85,  89. 
Cattlin  V.  Brown,  ii.  730. 
Caufman  v.  Sayre,  ii.  185,  265. 
Cavender  v.  Smith,  iii.  194,  197,  199, 

309. 
Cavis  V.  McClary,  ii.  169. 
Cazenove  i'.  Cutler,  ii.  229. 
Cecil  V.  Beaver,  iii.  288,  291,  294,  296. 
Center  v.  P.  &  M.  Bank,  ii.  120,  147. 
Central  Bridge  Co.  v.  Lowell,  ii.  295. 
Chace  v.  Hinnian,  ii.  2G0. 
Chadbourue  v.  Mason,  iii.  406. 


Chadwick  v.  Felt,  ii.  475. 

V.  Haverhill  Bridge,  ii.  291, 

293. 
V.  Parker,  i.  481,  485. 
V.  Perkins,  ii.  504. 
Chaffin  V.  Chaffin,  iii.  408. 
Chairs  v.  Brady,  ii.  50. 
Chalker  v.  Chalker,  ii.  12,  16,  19;  iii. 

378. 
Challefoux  v.  Ducharme,  i.  653,  655 ; 

iii.  142,  192. 
Chamberlain  v.  Bell,  iii.  320. 

V.  Bradley,  iii.  328,  430. 
V.  Bussey,  iii.  267. 
V.  Crane,  ii.  445. 
V.  Meeder,  iii.  109,  118. 
V.  Preble,  iii.  472. 
V.  Staunton,  Lii.  287. 
V.  Stearns,  iii.  513. 
V.  Thompson,  ii.  105,  161, 
167. 
Chamberlin  v.  Donahue,  i.  581,  594.  602. 
Chambers  v.  Goldwin,  ii.  63,  234. 
V.  Perry,  i.  521. 
V.  Pleak,  i.  559. 
V.  Wilson,  ii.  685. 
Chambliss  v.  Phelps,  i.  347. 
Champion  v.  Spence,  i.  677. 
Champlin  v.  Foster,  ii.  252. 
Champney  v.  Coope,  ii.  188,  189,  197. 
Chancellor  v.  Windham,  ii.  446. 
Chandler  v.  HoUingsworth,  i.  177,  217; 
iii.  339. 
'     V.  Kent,  i.  447  ;  iii.  276. 

V.  McKinney,  ii.  259  ;  iii.  252. 
V.  Simmons,  i.  457. 
V.  Spear,  i.  666  ;  iii.  1.54,  315. 
V.  Temple,  iii.  294. 
V.  Thompson,  ii.  373. 
V.  Thurston,  i.  9,    134,  572, 
573,  587. 
Chaney  v.  Chanev,  i.  207. 
Chapel  V.  Bull,  iii.  463,  496. 

V.  Clapp,  iii.  334. 
Chapin  v.  First  Universalist  Soc,  iii.  262. 
V.  Harris,  ii.  25. 
V.  Hill,  i.  321,  323,  324. 
Chaplin  v.  Chaplin,  i.  108. 

V.  Sawyer,  i.  379,  392. 
V.  Simmons,  i.  272. 
Chapman  v.  Bluck,  i.  451,  4-52. 

V.  Brown,  ii.  581 ;  iii.  532. 
V.  Chapman,  ii.  83. 
V.  Gray,  i.  466. 
j;.  Harney,  i.  481. 
V.  Kirby,  i.  481. 
V.  Long,  iii.  392. 
V.  McGrevv,  i.  496. 
V.  Robertson,  ii.  246. 
V.  Schroeder,  i.  209,  266,  288. 
V.  Tanner,  ii.  85,  226. 
V.  Towner,  i.  451. 
V.  Wright,  i.  481. 
Chappell  V.  Allen,  ii.  78. 
Charle  v.  Saffokl,  iii.  156. 


XXXVl 


TABLE   OF   CASES   CaiED. 


Charles  v.  Andrews,  i.  319. 

V.  Dubose,  ii.  227,  483. 
V.  Dunbar,  ii.  227. 
Charles  River  Bridge  v.  Warren  Bridge, 

ii.  297 ;  iii.  54,  VM. 
Charless  v.  Rankin,  ii.  360. 
Charter  v.  Stevens,  ii.  77. 
Cliase  V.  Abbott,  i.  371 ;   ii.  Ill,  186, 
251. 
V.  Hazelton,  i.  141,  142,  154,  158. 
V.  Kittredge,  iii.  505. 
V.  Lockerman,  ii.  141. 
V.  McLellan,  ii.  237. 
V.  Palmer,  ii.,224. 
V.  Peck,  ii.  46,  85,  87,  93. 
V.  Weston,  iii.  469,  470. 
V.  Woodbury,  ii.  200,  202,  203, 
204,  207. 
Chase's  case,  i.  210,  221,  246  ;  ii.  48. 
Chasemore  v.  Richards,  ii.  354,  356. 
Chatham  v.  Brainerd,  iii.  420. 

V.  Souls,  i.  377. 
Chatterton  v.  Fox,  i.  529. 
Chauncey  v.  Arnold,  iii.  242. 
Chauncy  v.  Gray  don,  ii.  15. 
Cheddington's  case,  ii.  668. 
Cheeseborough  v.  Green,  i.  17,  665 ;  ii. 

365,  366. 
Cheesebrough  v.  Millard,  ii.  130,  200, 

201,  211,  212,  214,  218,  219,  220. 
Cheetham  v.  Hampson,  i.  539,  540. 
Cheever  r.  Pearson,  i.  583,  590. 
V.  Perley,  ii.  184. 
V.  Rutland  &  B.  R.  R.,  u.  102. 
Chellis  V.  Stearns,  ii.  100,  134. 
Chelton  v.  Henderson,  i.  112. 
Chenery  v.  Stevens,  iii.  354. 
Cheney  v.  Watkins,  ii.   444 ;    iii.    319, 
370,  371,  372. 
V.  Woodruff,  ii.  2-50. 
Cherrington  v.  Abney  Mill,  ii.  345,  372. 
Cherry  v.  Monro,  ii.  216. 
V.  Slade,  iii.  407. 
V.  Steele,  iii.  425. 
V.  Stein,  ii.  305,  306,  345,  347, 
352. 
Cheshire  v.  Barrett,  i.  458. 
Chesley  v.  Thompson,  i.  660. 

V.  Welch,  i.  134. 
Chesnut  v.  Shane,  iii.  212,  215,  216. 
Chessman  v.  Whittemore,  iii.  247. 
Chester  v.  Willan,  i.  648. 
Chettle  V.  Pound,  i.  558,  565. 
Chew  V.  Commissioners,  i.  174, 175, 177. 
V.  Farmer's  Bank,  i.  266,  327. 
V.  Morton,  iii.  88. 
Chew's  Appeal,  ii.  550. 
Chicago  V.  Larned,  iii.  211,  212,  222. 

V.  Robbins,  i.  -541. 
Chick  V.  Rollins,  ii.  181,  182,  183. 

V.  Willetts,  ii.  104,  184. 
Child  V.  Baylie,  i.  101. 

V.  Starr,  iii.  411,  420,  42.3. 
V.  Wells,  iii.  42.5. 
Chads  V.  Clark,  i.  520,  521. 


Childs  V.  Dolan,  ii.  76. 

V.  McChesney,  iii.  115. 
V.  Smith,  i.  308. 
Chiles  V.  Conley,  iii.  270. 
Chilton  V.  Braideu's  Adm'x,  ii.  86,  93. 
V.  Niblett,  i.  600. 
V.  Wilson,  iii.  145. 
Chinn  v.  Respass,  i.  15. 
Chipman  v.  Kmeric,  i.  151,  159,  471. 
Chippendale,  ex  /xirte,  ii.  84. 
Chirac  ».  Reinecker,  iii.  14. 
Chisholm  v.  Georgia,  i.  64. 
Chittenden  v.  Barney,  ii.  175. 
Choate  v.  Burnham,  iii.  424,  442. 
Cholmeley's  case,  ii.  580. 
Cholmely  i'.  Paxton,  i.  155. 
Cholmondeley  v.  Clinton,  ii.  101,  168, 
171,  175,  180,  400,  489,  492,  494;  iii. 
163,  431. 
Choteau  v.  Jones,  iii.  229,  319. 
Chouteau  v.  Eckhart,  iii.  G8,  192. 
Chowning  v.  Cox,  ii.  43,  68. 
Christopher  v.  Austin,  i.  528,  530,  533, 

534. 
Christy  v.  Dyer,  i.  356,  398,  411,  424  ; 

ii.  248. 
Chubb  V.  Johnson,  iii.  18. 
Chudleigh's  case,  ii.  387,  388,  398,  399, 
400,  403,  410,  414,  420,  421,  436,  611, 
627,  628. 
Church  V.  Bull,  i.  324. 

V.  Burghardt,   ii.   325 ;    iii.  64, 

136,  138,  141. 
V.  Church,  i.  206,  207,  295 ;  ii. 

485. 
V.  Oilman,  iii.  206,  227,  282,  290, 

292,  295. 
V.  Meeker,  iii.  55,  419,  422. 
V.  Savage,  ii.  199. 
V.  Wells,  i.  31. 
Churchill  v.  Churchill,  ii.  604;  iii.  540. 
Cibel  V.  Hills,  i.  534. 
Cicotte  V.  Gagnier,  ii.  148. 
Cincinnati  v.  Newhall,  iii.  257. 

V.  White,  iii.  73. 
Cln.,  Wil.,  &c.  R.  R.  v.  Iliff,  iii.  290,  299, 

304. 
Cipperby  v.  Rhodes,  i.  395,  422. 
City  Bank  v.  Smith,  ii.  20,  21. 
City  Council  v.  Moorhead,  i.  538. 
Claflin  V.  Carpenter,  i.  11,  638;  iii.  277, 
343.  345. 
V.  Godfrey,  ii.  188. 
Clancy  v.  Byrne,  i.  539. 
Clanrickard  v.  Sidney,  iii.  379. 
Clap  V.  Draper,  i.  14;  iii.  345,  393,  44.3. 
Clapp  V.  Bromagham,  i.  681 ;  iii.  144. 
V.  Leatlierbee,  iii.  333. 
V.  Stougliton,  ii.  15;  iii.  20. 
V.  Tirrell,  iii.  334. 
Claremont  v.  Carleton,  iii.  413,  424. 
Clareraont  Bridge  v.  Royce,  iii.  340. 
Claridge  v.  McKenzie,  i.  566,  567,  569. 
Clark  V.  Allen,  iii.  243. 
V.  Babcock,  i.  544. 


TABLE   OP   CASES   CITED. 


xxxvu 


Clark  V.  Baird,  iii.  425. 

V.  Baker,  ii.  104,  169 ;  iii.  90,  95, 
96,  99,  105,  109,  479. 

V.  Beach,  ii.  101, 102, 122, 162, 167. 

V.  BeU,  ii.  94. 

V.  Brown,  i.  653  ;  ii.  65. 

V.  Campau,  iii.  430. 

V.  Cliase,  iii.  138. 

V.  Clark,  i.  168,  169,  183,  213. 

V.  Conroe,  iii.  468,  474. 

V.  Cotrel,  iii.  441. 

V.  Crosby,  ii.  245. 

V.  Duval,  ii.  379. 

V.  Frost,  i.  151. 

f.  Gifford,  iii.  302. 

V.  Gilbert,  iii.  147,  162. 

V.  Graham,  iii.  238,  271,  276. 

V.  Griffith,  i.  325. 

V.  Hammerle,  iii.  67. 

V.  Henry,  ii.  43,  62. 

V.  Holden,  i.  155. 

V.  Hunt,  ii.  89,  90,  91,  94. 

V.  Jenkins,  ii.  114,  148. 

V.  Jones,  i.  471,  474. 

V.  Keliher,  i.  613,  627. 

V.  Kins^sley,  iii.  221. 

V.  MarUn,  ii.  309,  310,  312. 

V.  Munroe,  i.  219. 

V.  Owens,  i.  115. 

V.  Parker,  i.  680. 

V.  Prentice,  ii.  252,  253. 

V.  Redman,  i.  250. 

V.  Reybum,  ii.  104,  238. 

V.  Scott,  iii.  523. 

V.  Shannon,  i.  361,  414. 

V.  Smith,  i.  584, 589, 604  ;  ii.  228, 

229,  2.30. 
V.  Swift,  iii.  449,  450,  459,  460. 
V.  Troy,  iii.  322. 
V.  Way,  i.  14. 
V.  Wheelock,  i.  585,  612. 
V.  White,  ii.  291. 
V.  Williams,  i.  63. 
Clark's  Ex'rs  v.  Trail,  iii.  165. 
Clarke  v.  Bancroft,  ii.  219,  220. 

V.  Courtney,  iii.  277. 

'V.  Cummings,  i.  473,  505. 

V.  Curtis,  ii.  166. 

V.  Hayes,  iii.  216. 

V.  McAnulty,  iii.  474. 

V.  McClure,  i.  59 ;  iii.  129,  142. 

V.  Minot,  ii.  491. 

V.  Ray,  iii.  294. 

V.  Rochester,  ii.  292;    iii.   211, 
212,  222. 

V.  Sibley,  ii.  42. 

V.  Van  Surlay,  iii.  216. 
Clarkson  v.  Skidmore,  ii.  250. 
Clary  v.  Prayer,  ii.  652. 

V.  Owen,  i.  24 ;  ii.  174,  194. 
Clason  V.  Corley,  ii.  239. 

V.  Shepherd,  ii.  145. 
Claussen  v.  La  Franz,  ii.  485,  518. 
Clavering  u.  Clavering,  i.  144. 
Clay  V.  Sharpe,  ii.  71. 


Clay  V.  Wren,  ii.  112. 
Claycomb  v.  Hunger,  iii.  468,  472,  497. 
Clayton  u.  Blakely,  i.  614. 
V.  Corby,  ii.  369. 
Clearwater  v.  Rose,  i.  83. 
Cleary  v.  McDowell,  i.  333. 
Clee  V.  Seaman,  i.  667  ;  iii.  92,  93. 
Clegg  V.  Rowland,  i.  467. 
Clemence  v.  Steere,  i.   142,   143,    145, 

147,  148,  149. 
Clemens  v.  Bromfield,  i.  600. 
Clement  v.  Youngraan,  i.   18 ;  ii.   375, 

376,  377  ;  iu.  382,  393. 
Clements  ik  Landrum,  iii.  375. 
Clemm  v.  Wilcox,  i.  560. 
Clepper  v.  Livergood,  i.  166. 
Clere's  case,  ii.  396,  429,  665. 
Cleveland  v.  Flagg,  iii  331,  408,  409. 

V.  Hallett,  ii.  468,  495,  496, 

504. 
V.  Jones,  iii.  131. 
V.  Martin,  ii.  98,  107,  186. 
Cleves  V.  Willoughby,  i  545. 
Cliffijrd  V.  Parker,  iii.  246. 

V.  Watts,  i.  506,  528,  535. 
Clift  V.  White,  i.  554. 
Climie  v.  Wood,  i.  24,  26. 
Cline  V.  Black,  i.  5-52 ;  iii.  272. 
Clinton  v.  Fly,  ii.  66. 
Close  V.  Samm,  iii.  141,  150,  152. 
Cloud  V.  Calhoun,  ii.  508,  510 ;  iii.  290, 

297. 
Clough  V.  Bowman,  iii.  397. 

V.  Elliott,  i.  294 ;  ii.  212. 
V.  Hosford,  i.  593,  595. 
Clowes  V.  Dickinson,  ii.  179,  202,  203. 

V.  Hawley,  i.  656. 
Cluggage  V.  Duncan,  iii.  151,  152,  154. 
Clan's  (Wm.)  case,  i.  126,  519,  525,  526. 
Clute  V.  Carr,  i.  633,  637. 
Clymer  v.  Dawkins,  i.  656. 
Coates  V.  Cheever,  i.  144,  208,  229,  231, 
287. 
V.  Woodworth,  ii.  480,  517. 
Cobb  V.  Smith,  iii.  415. 
V.  Stokes,  i.  603. 
Cobel  V.  Cobel,  i.  519. 
Cobert  v.  Cobert,  i.  319. 
Coburn,  ex  parte,  i.  634. 

V.  Coxeter,  ii.  .300;  iii.  407. 
V.  Ellenwood,  i.  685. 
V.  Harvey,  ii.  279. 
V.  Hollis,  iii.  126,  149. 
V.  Palmer,  i.  557,  583. 
Cobwin,  ex  parte,  i.  629. 
Cochran  v.  Harrow,  iii.  79. 

V.  O'Hern,  i.  168,  169. 
V.  Van  Surlay,  iii.  217. 
Cochrane  v.  Ferris,  iii.  145. 
V.  Guild,  iii.  461. 
V.  Libby,  i.  236. 
Cocke  V.  Brogan,  iii.  105,  2',  6. 
Cocker  v.  Cowper,  i.  633,  689. 
Cockery  i>.  Hart,  ii.  72. 
Coder  v.  Huling,  i.  668. 


XXXVIU 


TABLE   OP    CASES    CITED. 


Codman  r.  Evans,  ii.  300 ;  iii.  896,  420. 
V.  Jenkins,  i.  127,  658. 
V.  Hall,  i.  461. 

V.  Winslow,  i.  18 ;  iii.  128,  205. 
Codrington  v.  Johnstone,  i.  138. 
Codwise  v.  Taylor,  ii.  76,  94. 
Cody  V.  Quarterman,  i.  586,  604. 
Coe  V.  Columbus,  &c.  R.  R.,  ii.  53,  157. 
V.  Johnson,  ii.  78. 
V.  McBrown,  ii.  78. 
V.  Persons  Unknown,  iii.  112. 
V.  Smith,  i.  896,  409. 
r.  Wolcottville  Mg.  Co.,  i.  181. 
Coflan  V.  Heath,  i.  663,  665 ;  ii.  866. 
V.  Loring,  ii.  40,  50,  54,  246. 
V.  Lunt,  i.  599. 
V.  Ray,  iii.  326. 
Coffman  v.  Hack,  i.  592. 
Coffring  v.  Cook,  ii.  226. 
Cofran  v.  Cockran,  iii.  205,  279. 
Cogan  I'.  Cogan,  ii.  545,  583,  628. 

V.  Frisby,  iii.  323. 
Coghil  V.  Freeiove,  i.  504. 
Coggswell  V.  Coggswell,  i.  125. 

V.  Tibbetts,  i.  243. 
Cohen  v.  Davis,  i.  367,  394,  407,  421. 

V.  Dupont,  i.  532. 
Coit  V.  Starkweather,  iii.  276. 
Coker  v.  Pearsall,  ii.  137. 
Colburn  v.  Mason,  i.  656. 

V.  Richards,  ii.  349. 
Colby  V.  Ivenniston,  iii.  317. 
V.  Norton,  iii.  89. 
V.  Osgood,  iii.  448,  479. 
Colchester  v.  Roberts,  ii.  335. 
Colcord  V.  Swan,  iii.  260. 
Cold  Spring,  &c.  v.  Tolland,  iii.  411. 
Cole  V.  Batley,  iii.  16. 
V.  Eagle,  i.  627. 
V.  Edgerly,  ii.  117,  131. 
V.  Gill,  i.  348,  356,  398,  590 ;  iii.  295. 
V.  Hughes,  ii.  285,  363. 
V.  Lake  Company,  i.  52,  586 ;  ii. 

147 ;  iii.  384. 
V.  Livingston,  ii.  557. 
V.  Patterson,  i.  519. 
V.  Raymond,  iii.  107,  466,  469, 480. 
V.  Roe,  iii.  162. 
V.  Scott,  ii.  89. 

V.  Sewell,  ii.  558,  581,  617,  632. 
V.  Stewart,  ii.  134,  135,  157. 
V.  Wade,  ii.  513,  662. 
Colegrave  v.  Dias  Santos,  i.  15. 
Coleman  r.  Barklew,  iii.  317. 
V.  Coleman,  i.  677. 
V.  Foster,  i.  632,  635,  638. 
V.  Haight,  i.  536. 
I'.  Holmes,  iii.  179. 
V.  Lane,  i.  652. 
V.  Lewis,  i.  8. 
V.  Lyman,  iii.  450. 
V.  Packard,  ii.  66,  112. 
Coles  V.  Coles,  i.  304. 

V.  Soulsby,  iii.  376. 
V.  Wooding,  i.  676. 


Colgan  V.  McKeon,  iii.  48. 
Collamer  v.  Langdon,  ii.  117. 
Collier  v.  Gamble,  iii.  456. 

V.  Pierce,  ii.  305,  346,  347,  374. 
Collins  V.  Canty,  i.  60G,  611. 
V.  Carlile,  ii.  151. 
V.  Carman,  i.  325,  326. 
V.  DriscoU,  ii.  302. 
V.  Hasbrouck,  i.  510. 
V.  Hopkins,  ii.  70. 
V.  Prentice,  ii.  306  ;  iii.  262. 
V.  Smith,  ii.  483,  524. 
V.  Terry,  i.  226,  229,  231,  236. 
V.  Whikiier,  i.  517. 
Collins  Mg.  Co.  v.  Marcy,  ii.  12. 
Colman  v.  Anderson,  iii.  225, 
Colquhoun  v.  Atkinson,  iii.  282,  286. 
Colter  V.  Jones,  ii.  251. 
Colthirst  V.  Bejushin,  ii.  558,  621. 
Coltman  v.  Senhouse,  ii.  712. 
Colton  V.  Seavy,  iii.  273,  403,  405. 

V.  Smith,  i.  679,  683 ;  ii.  166, 168. 
Colvin  V.  Burnett,  ii.  322,  326. 

V.  Warford,  i.  571,  621 ;  iii.  235. 
Colwell  V.  Woods,  ii.  54,  58. 

V,  Warner,  ii.  126. 
Colyer  v.  Finch,  ii.  83. 
Combe's  case,  i.  449 ;  ii.  635. 
Combs  V.  Jackson,  i.  64. 
Comby  v.  McMichael,  ii.  497. 
Comer  v.  Chamberlain,  i.  179. 
Comerford  v.  Cobb,  iii.  274. 
Comins  v.  Comins,  iii.  144,  162. 
Comly  V.  Strader,  i.  191. 
Commercial  Bank  v.  Cunningham,  ii. 

151. 
Commissioners  v.  Kempsliall,  iii.  410. 
V.  Thompson,  iii.  402. 
V.  Withers,  iii.  212,  413. 
Commonwealth  v.  Alger,  i.  2,  64,  65  ; 
iii.  202,  212,   411, 
413,  418,  419. 
V.  Andre,  i.  74  ;  iii.  49. 
0.  Chapin,  iii.  413. 
•    V.  Chapman,  i.  36. 
V.  Charlestown,  i.  64. 
V.  Dudley,  iii.  306. 
V.  Haley,  i.  625. 
V.  Harrington,  i.  468. 
V.  Hite,  iii.  48. 
V.  Hunt,  i.  213. 
V.  Knowlton,  i.  86. 
V.  Leach,  i.  36. 
V.  Low,  ii.  869. 
V.  Pejepscut      Prop'rs, 

i'ii.  85. 
17.  Roxbury,  i.  63  ;    iii. 
183,  186,  189,  190, 
202,  204,  205,  384, 
406,  418,  419. 
V.  Smith,  ii.  158. 
V.  Tewksbury,  i.  2,  65. 
V.  Williams,  ii.  677. 
Compher  v.  Compiler,  i.  362,  390,  391. 
Comstock  V.  Hilt,  ii.  113. 


TABLE   OF   CASES    CITED. 


XXXIX 


Comstock  V.  Smith,  ii.  176  ;  iii.  92,  93, 
104,  106,  109,  112,  246, 
475. 
r.  Van  Deusen,  ii.  335. 
Conant  v.  Little,  i.  273,  274,  306. 
V.  Smith,  i.  683. 
V.  Warren,  i.  338. 
Concord  Bank  v.  Bellis,  iii.  71,  97,  106, 

248,  267,  291. 
Concord  Ins.  Co.  v.  Woodbury,  ii.  231, 

258. 
Condict,  Ex'rs  of,  v.  King,  ii.  735. 
Condit  V.  Neighbor,  ii.  743. 
Conger  v.  McLaury,  ii.  18. 

V.  Ring,  ii.  523. 
Congleton  v.  Fattison,  i.  502. 
Conklin  v.  Conklin,  ii.  707. 

V.  Foster,  i.  148,  355. 
Conn  V.  Penn,  iii.  426. 
Connelly  v.  Doe,  iii.  285. 
Conner  v.  Bradley,  i.  481. 
V.  Chase,  ii.  51. 
V.  Lewis,  ii.  471,  486. 
V.  Shepard,  i.  143,  209. 
V.  Tuck,  ii.  514. 
Connery  i'.  Brooke,  ii.  334,  337  ;  iii.  384. 
Connor  v.  Mc  Murray,  i.  412. 
V.  Nichols,^.  408,  409. 
V.  Whitmore,  ii.  114,  117,  128, 
170. 
Conover  v.  Hoffman,  ii.  508,  509. 
V.  Mut.  Ins.  Co.,  ii.  166. 
V.  Porter,  i.  249 ;  iii.  241. 
V.  Warren,  ii.  91. 
Conrad  v.  Atlantic  Ins.  Co.,  ii.  151. 

v.  Harrison,  ii.  206,  220. 
Conroy  v.  Sullivan,  i.  347,  396. 
Constant  v.  Abell,  i.  603. 

V.  ISlatteson,  ii.  529. 
Converse  v.  Blumrick,  ii.  94. 

V.  Converse,  iii.  512. 
V.  Ferry,  i.  663. 
Conway  v.  Alexander,  ii.  43,  48,  49,  57, 
60. 
V.  Cable,  iii.  216,  223. 
V.  Dunfield,  iii.  307. 
V.  Starkweather,  i.  603,  604. 
Conwell  I'.  Evill,  ii.  50. 
Cook  V.  Allen,  i.  677,  683. 

V.  Babcock,  iii.  86,  129,  135,  136, 

141. 
V.  Bisbee,  1.  89. 
V.  Brightly,  i.  496;   u.  195,  282, 

289,  290. 
V.  Brown,  iii.  282,  290,  301. 
V.  Champlain  Transp.  Co.,  i.  150. 
V.  Collyer,  ii.  50. 
V.  Cook,  i.  131,  308,  585. 
V.  Davenport,  i.  685. 
V.  Fisk,  i.  286. 
V.  Gerrard,  ii.  557. 
V.  Gudger,  ii.  58. 
V.  Hammond,  i.  62,  65,  258;    ii. 

740,  741 ;  iii.  14. 
V.  Humber,  i.  480. 


Cook  V.  Klink,  i.  429. 
V.  Major,  ii.  339. 
V.  McChristinn,  i.  353,367,  382. 
V.  Norton,  i.  620. 
V.  Pridgen,  i.  637. 
V.  Sinnamon,  iii.  263. 
i;.  Stearns,  i.  629,  630,  63-3,  637. 
V.  Whiting,  i.  13;  iii.  391. 
Cooke  V.  Hull,  ii.  351. 

V.  Loxley,  i.  556. 
Cooley  V.  Hobart,  ii.  250. 
Coolidge  V.  Learned,  ii.  319,  368 ;  iii.  52, 
53. 
V.  Melvin,  ii.  29  ;  iii.  333, 836. 
f.  Wells,  i.  358. 
Coombs  V.  Jordan,  ii.  150. 
V.  Jackson,  i.  64. 
V.  Warren,  ii.  165. 
V.  Young,  i.  2-56. 
Coon  V.  Brickett,"i.  482;  ii.  19. 

V.  Smith,  iii.  86. 
Cooper  V.  Adams,  i.  5,  586. 
V.  Barber,  ii.  355. 
V.  Brockway,  iii.  228. 
V.  Cole,  i.  471. 
V.  Cooper,  ii.  516,  606,  722. 
V.  Crosby,  ii.  69. 
V.  Davis,  ii.  135,  136,  162,  169. 
V.  Jackson,  iii.  284,  288. 
V.  Martin,  ii.  174. 
V.  Smith,  i.  5.59;  iii.  138. 
V.  Ulman,  ii.  122. 
V.  Whitney,  i.  204 ;  ii.  468i 

v.,  ii.'273. 

Cope  V.  Cope,  ii.  198. 

V.  Meeks,  iii.  248,  253. 
Copeland  v.  Copeland,  ii.  145;  iii.  77,  81. 

V.  Stephens,  i.  524. 
Copley  V.  Riddle,  iii.  194. 
Corbet  v.  Lawrens,  i.  123. 

V.  Stone,  ii.  586,  621. 
Corbett  v.  Norcross,  i.  685. 
Corbin  v.  Cannon,  i.  657. 

V.  Healy,i.  101, 108, 109 ;  iii.  398. 
V.  Jackson,  i.  685. 
Corder  v.  Morgan,  ii.  71. 
Corey  v.  People,  i.  304. 
Corkhill  v.  Landers,  iii.  89. 
Corliss  V.  Corliss,  iii.  324. 
Cormerais  u.  Genella,  ii.  76. 
Cornelius  v.  I'-ins,  ii.  15. 
Cornell  v.  Hitchins,  ii.  247. 

V.  Jackson,  i.  57  ;  iii.  125,  408, 

461,  488,  493,  494. 
V.  Lamb,  i.  64  ;  ii.  274. 
V.  Prescott,  ii.  216. 
Corning,  ex  parte,  ii.  82. 

V.  Gould,  i.  534 ;  ii.  330,  339, 
340,  343,  370;  iii.  61,63, 
66,  73. 
V.  Smith,  ii.  254,  258. 
V.  Troy  Iron   Co.,  i.  29 ;   iii. 
149,  330,  409,  432. 
Cornish  v.  Abington,  iii.  82. 
Cornog  V.  Fuller,  ii.  190. 


Xi 


TABLE   OP    CASES   CITED. 


Cornell  v.  Ham,  i.  324. 
Cortelyeu  v.  Hathaway,  ii.  136. 
Cortelyou  i'.  Van  Brunt,  iii.  418. 
Corwin  v.  Corwin,  iii.  370,  872. 
Corwitlie  !'.  Gritting,  i.  679. 
Costen's  Appeal,  ii.  o'2o. 
Coster  V.  Brown,  ii.  185. 

V.  Clark,  i.  201,  204. 
V.  Lorillard,  ii.  451,  530. 
Cote  V.  Dequindre,  i.  671 ;  ii.  252. 
Cother  v.  ^Ierrick,  i.  520. 
Cotter  V.  Layer,  ii.  677. 
Cotterell  v  Dutton,  iii.  165. 
V.  Long,  ii.  43,  60. 
V.  Purchase,  ii.  59. 
Cottle  V.  Young,  iii.  421. 
Cotton,  ex  parte,  i.  23. 

V.  Pocasset  Mg.  Co.,  ii.  828. 
V.  Seavey,  iii.  424. 
V.  Ward,  iii.  419,  493. 
V.  Wood,  i.  385. 
Couch  V.  Stratton,  i.  320. 
Coulter  V.  Holland,  i.  286. 

V.  Robertson,  ii.  495. 
Counden  v.  Gierke,  ii.  581 ;  iii.  263,  265. 
County  of  St.  Clair  v.  Lovingston,  iii. 

59,  60,  412. 
Coursey  v.  Davis,  ii.  552. 
Covin  v.  DoUoff,  ii.  100. 
Cowden  v.  St.  John,  i.  28. 
Gowden's  Estate,  ii.  205,  219. 
Cowdry  V.  Goit,  iii.  475. 
Cowell  V.  Lumley,  i.  491. 
V.  Thayer,  ii.  331. 
Cowl  V.  Varnum,  ii.  87,  91. 
Cowles  V.  Kidder,  i.  631,  632,  633. 
Cowling  V.  Higginson,  ii.  321,  883. 
Cowman  v.  Hall,  i.  204. 
Gowper  v.  Andrews,  ii.  5. 
Cox  V.  Baker,  i.  31. 

V.  Chamberlain,  ii.  647. 

V.  Cook,  i.  369. 

V.  Cox,  ii.  479. 

V.  Edwards,  ii.  440. 

V.  Fenwick,  ii.  90. 

V.  Freedley,  iii.  411,  421. 

V.  Hoxie,  ii.  153. 

V.  Jagger,  i.  302. 

V.  James,  ii.  307;  iii.  99, 395, 428, 485. 

V.  Lacey,  iii.  98. 

V.  Matthews,  ii.  345. 

V.  McBurney,  i.  668. 

V.  MoMuUin,  i.  655. 

V.  Shropshire,  i.  418,  427. 

V.  Wells,  iii.  257. 

V.  Wheeler,  ii.  217. 
Coxe  V.  Higbee,  i.  292. 
Coyle  V.  Davis,  ii.  130. 
Cozens  v.  Grout,  iii.  508. 

V.  Long,  i.  242. 
Craddock  );.  Riddlesburger,  i.  11. 
Croft  V.  Webster,  ii.  98,  122,  128. 
Crofts  V.  Crofts,  i.  678;  ii.  178,  216,  228. 

V.  Hibbard,  iii.  401. 
Craig  V.  Dimmock,  iii.  238. 


Craig  V.  Hawkins,  iii.  406. 

V.  Leslie,  i  31. 

V.  Pinson,  iii.  275,  276,  360. 

V.  Tappin.ii.  151,  152.  156,  200. 

V.  Taylor,  i.  642. 

V.  Waltiiall,  i.  318. 
Craiki!.  Clark,  ii.  174. 
Grain  v.  Fox,  ii.  343. 
Gram  v.  Ingalls,  ii.  446. 
Cramer  v.  Burton,  iii.  383. 
Crane  v.  Batten,  i.  477,  479. 

V.  Bonnell,  ii.  51,  54,  60. 

V.  Brigham,  i.  23,  27. 

V.  Goldwell,  ii.  92. 

V.  Deming,  ii.  151,  153. 

V.  March,  ii.  98,  120,  121,  163. 

r.  Palmer,  i.  207;  ii.  88. 

V.  Reeder,  iii.  48,  276,  332. 

V.  Waggoner,  i.  347,  385. 
Cranson  v.  Granson,  i.  217. 
Cranston  r.  Gram,  ii.  69,  72,  77. 
Grary  v.  Gooilman,  iii.  140. 
Grassen  v.  Swoveland,  ii.  61 ;  iii.  818. 
Crawford  v.  Chapman,  i.  495,  496. 
Greacroft  v.  Wions,  i.  323. 
Creech  v.  Crockett,  i.  598,  599,  617. 
Creed  v.  Lancaster  Bank,  ii.  478. 
Creel  v.  Kirkhani,  i.  {j73. 
Gregier,  Matter  of,  i.  260. 
Greighton  v.  Paine,  iii.  219. 
Gresfield  v.  Storr,  ii.  590. 
Gresap  v.  Hutoon,  iii.  151. 
Cressinger  v.  Welch,  i.  456,  458  j  iii.  250, 

252. 
Cresson  v.  Miller,  iii.  332. 

V.  Stout,  i.  25. 
Crest  V.  Jack,  i.  7,  663 ;  iii.  75. 
Crews  V.  Pendleton,  i.  138. 

V.  Threadgill,  ii.  50. 
Crippen  V.  Morrison,  i.  23 ;  ii.  103. 

V.  Morss,  i.  655. 
Gripps  ".  Grysil,  ii.  140. 
Crisfield  v.  Storr,  ii.  545. 
Criswell  v.  Altemus,  Hi.  142,  152. 
Griswell's  Appeal,  ii.  604. 
Crittenden  v.  Field,  iii.  388. 
V.  Johnson,  i.  204. 
V.  Fairchild,  ii.  656. 
V.  Rogers,  ii.  261. 
V.  Woodruff,  i.  238. 
Croade  v.  Ingraham,  i.  252,  803,  463. 
Crocker  v.  Higgins,  ii.  503. 
V.  Pierce,  iii.  109. 
V.  Thompson,  ii.  190. 
Crockett  v.  Crockett,  i.  131, 142, 145, 309. 

V.  Maguire,  iii.  319. 
Croft  V.  Bunster,  ii.  106,  247. 

V.  Powell,  ii.  68,  71. 
Cromie's  Heirs  v.  Louisville  Home  Soc, 

iii.  521. 
Cronmielin  v.  Thiess,  i.  508, 517,602,603. 
Crompe  v.  Barrow,  ii.  667,  668. 
Cromwell's  case,  ii.  25. 
Cromwell  v.  Bank  of  Pittsburg,  ii.  182. 
V.  Tate,  iii.  274. 


TABLE    OF    CASES   CITED. 


xli 


Cromwell  v.  Winchester,  i.  52. 

V.  Wooley,  iii.  507. 
Cronin-  v.  Hazeltine,  ii.  125,  245,  268. 

V.  Richardson,  iii.  407. 
Crocker  v.  Crooker,  ii.  252. 
V.  Frazier,  ii.  164. 
V.  Jewell,  ii.  117. 
Crop  V.  Norton,  ii.  476,  507. 
Crosby  v.  Bradbury,  iii.  388,  399. 
V.  Chase,  i.  231 ;  iii.  107. 
V.  Loop,  i.  519,  520,  521. 
V.  Montgomery,  iii.  434. 
V.  Parker,  iii.  893. 
V.  Wadsworth,  iii.  346. 
Cross,  in  re,  i.  414. 

V.  Carson,  ii.  13,  19. 
V.  Evarts,  i.  416. 
V.  Hepner,  ii.  45,  55. 
V.  Lewis,  i.  33  ;  ii.  324,  328,  344. 
V,  Martin,  iii.  118. 
V.  State  Bank,  iii.  242. 
V.  Upson,  i.  509. 
Crouch  V.  Puryear,  i.  144. 
Crow  V.  Mark,  i.  662. 

V.  Vance,  ii.  92,  122. 
Crowell  V.  Beebe,  iii.  89. 

V.  Woodbury,  i.  683. 
Crowley  v.  Wallace,  iii.  309. 
Croxhall  v.  Sherard,  i.  97,  111 ;  ii.  461, 
467, 490, 491,  523,  541,  548,  550 ;  iii.  92. 
Cruger  v.  Daniel,  iii.  92. 

V.  Halliday,  ii.  508. 
V.  McLaury,  i.  476,  525  ;  ii.  289. 
Crump  V.  Norwood,  i.  197  ;  ii.  590,  689. 
Crusoe  v.  Bugby,  i.  474,  479. 
Crutclifield  v.  Coke,  ii.  265. 
Cubitt  V.  Porter,  ii.  364. 
Cudlip  V.  Rundall,  i.  589. 
Cuffee  V.  Milk,  i.  113. 
Culbertson  v.  Duly,  iii.  18. 
Cullen  V.  Motzer,  i.  658. 
CuUum  V.  Branch  Bank,  ii.  187. 

V.  Erwin,  ii.  121,  123. 
CuUwick  V.  Swindell,  i.  23. 
Culver  V.  Culver,  i.  682.  [200. 

Cumberland  v.  Codrington,  ii.  198,  199, 

I'.  Graves,  ii.  496. 
Cumming  v.  Cumming,  ii.  203,  206. 
Cummings  v.  Barrett,  i.  4 ;  iii.  342. 

V.  Cassily,  iii.  242. 
Cunningham  v.  Hawkins,  ii.  104,  185. 
V.  Houlton,  i.  515,  568,  582, 

592,  604,  607,  619. 
V.  Horton,  i.  582,  592, 604, 

007,  619. 
V.  Knight,  i.  220,  222,  246. 
V.  McKindley,ii.  492,493. 
Cunynghara  v.  Thurlow,  ii.  643. 
Curl  V.  Lowell,  i.  585,  619. 
Curie  V.  Barrell,  iii.  194. 
Currey  v.  Davis,  i.  573. 
Currier  v.  Barker,  i.  607,  615. 

V.  Earl,  i.  587,  591 ;  iii.  92. 
V.  Gale,  i.  77  ;  ii.  128,  102,  332 ; 
iii.  144,  147,  166,  428. 


Currier  v.  Perley,  i.  610. 
Curry  v.  Sims,  ii.  706. 
Cursham  v.  Newland,  ii.  603. 
Curtin  V.  Patton,  i.  458. 
Curtis  V.  Daniel,  i.  18. 

V.  Deering,  iii.  477,  478. 

V.  Galvin,  i.  585,  612,  613,  623. 

V.  Gardner,  iii.  435. 

V.  Hobart,  i.  275. 

V.  Keesler,  ii.  319,  331. 

V.  Lyman,  ii.  147. 

V.  Miller,  i.  547. 
,  V.  Mundy,  iii.  318. 

V.  Nightingale,  iii.  479. 

V.  Root,  ii.  65,  163. 

V.  Tyler,  ii.  215. 
Gushing  v.  Aver,  ii.  203,  206. 
V.  Hurd,  iii.  321. 
V.  Kenfield,  i.  588. 
Cushman  v.  Bhinchard,  iii.  452,453,457. 
V.  Luther,  ii.  47. 
V.  Smith,  i.  2;  iu.  218. 
Cushney  v.  Henry,  ii.  530. 
Custis  V.  Fitzhugh,  i.  15. 
Cuthbert  v.  Kuhn,  i.  528. 

V.  Lawton,  ii.  339. 
Cuthbertson  v.  Irving,  i.  454,  503 ;  iii. 

91,  106. 
Cutler  !'.  Davenport,  iii.  187. 

V.  Haven,  ii.  121. 

V.  Tufts,  iii.  400,  434,  440. 
Cutter  V.  Cambridge,  iii.  151. 

V.  Davenport,  ii.  42,  115,  118. 
Cutting  V.  Carter,  i.  160. 

V.  Rockwood,  i.  653. 
Cutts  V.  York  Co.,  iii.  286,  287,  294. 


D. 


Dabney  v.  Green,  ii.  174. 
Dadmun  v.  Lamson,  ii.  168  ;  iii.  329. 
Daggett  V.  Rankin,  ii.  42,  144. 
V.  Shaw,  iii.  427. 
V.  Willey,  iii.  88,  426. 
Dahl  V.  Pross,  ii.  35.  • 

Dakin  v.  Allen,  i.  593. 
Dalby  v.  Pullen,  ii.  647. 
Dale  V.  Arnold,  iii.  320. 

V.  Lincoln,  iii.  289. 
Dallam  v.  Dallam,  ii.  706,  707. 
Dalton  V.  Dalton,  i.  130,  143,  309. 
Damainville  v.  Mann,  i.  503. 
Damb  v.  Hoffman,  i.  504. 
Dame  v.  Dame,  i.  4,  8,  583. 

V.  Wingate,  iii.  331. 
Damon  v.  Bryant,  ii.  121. 
V.  Damon,  iii.  527. 
Dana  ?;.  Binney,  ii.  186. 

V.  Jackson  St.  Wharf,  iii.  418. 

V.  Middlesex  Bank,  iii.  400. 

V.  Newhall,  iii.  247. 


xlii 


TABLE    OF   CASES   CITED. 


Dana  v.  Valentine,  ii.  366  ;  iii.  53. 

V.  Wennvorth,  ii.  311. 
Dand  v.  Kingscott,  ii.  308  ;  iii.  390,  435. 
Dane  v.  Kirkwall,  i.  455. 
Danforth  v.  Beattie,  i.  418  ;  iii.  333. 
V.  Sargent,  i.  599,  604. 
V.  Smith,  i.  276,  294,  299. 
V.  Talbot,  ii.  556. 
Daniel  v.  North,  ii.  325,  329,  330. 

V.  Wood,  i.  31. 
Daniels  v.  Brown,  i.  573,  578. 

V.  Cheshire  R.  R.  Co.,  iii.  411. 
V.  Davison,  iii.  318. 
V.  Eisenlord,  ii.  66. 
V.  Henderson,  ii.  263. 
V.  Pond,  i.  19,  577,  587  ;  iii.  393. 
V.  Rowe,  ii.  157. 
Danner  v.  Shissler,  iii.  16. 
Daqiiin  v.  Armant,  i.  511. 
Darbie's  (Countess  of)  case, ii.  566,  585. 
Darby  v.  Anderson,  i.  558. 
V.  Darby,  i.  668. 
V.  Hays,  ii.  124. 
V.  Mayer,  iii.  187. 
Darcus  i'.  Crump,  ii.  719. 
Darcy  v.  Askwith,  i.  144,  145  ;  ii.  302, 

307. 
D'Arcy  v.  Blake,  i.  202,  203 ;  u.  499. 
Darley  v.  Darley,  iii.  538. 
Darling  v.  Blanchard,  ii.  552. 

V.  Chapman,  ii.  172. 
Darst  V.  Bates,  iii.  281,  359. 
Dart  V.  Dart,  iii.  96,  107,  109,  348. 
Dartmouth  College  v.  Clough,  i.  516. 

V.  Woodward,      ii. 
295. 
Dashiel  v.  Attorney-General,   iii.  518, 

582. 
Dashwood  ;;.  Blythway,  ii.  159. 
Daubenspeck  v.  Piatt,  ii.  104,  173. 
Daughaday  v.  Paine,  ii.  88,  90  ;  iii.  328. 
Davenport  v.  Alston,  i.  346,  354,  368. 
V.  Farrar,  i.  205. 
V.  Lamson,  ii.  335. 
V.  Tyrrel,  iii.  52. 
Davey  v.  Durant,  ii.  75. 

V.  Turner,  i.  335  ;  iii.  254. 
Davidson  v.  Beatty,  iii.  151. 

•     V.  Cooper,  iii.  242,  247. 
V.  Cowan,  ii.  144,  149. 
V.  Young,  iii.  81. 
Daries  v.  Bush,  ii.  586,  588. 
V.  Myers,  i.  123. 
V.  Speed,  ii.  473,  613,  711,  712  ; 
iii.  374. 
Davis  V.  Andrews,  i.  345,  363,  392, 403, 
418,  428  ;  iii.  248. 
V.  Bartholomew,  i.  199,  246. 
V.  Brandon,  iii.  272. 
V.  Brocklebank,  i.  134. 
V.  Buffum,  i.  27,  437  ;  ii.  157. 
V.  Burrell,  i.  623. 
V.  Christian,  i.  (368  ;  ii.  529. 
V.  Clarke,  i.  672. 
V.  Clay,  u.  122. 


Davis  V.  Davis,  iii.  79,  82. 
V.  Peyton,  i.  135. 
V.  Gilliam,  i.  142. 
V.  Handy,  iii.  389. 
i».  Haydcn,  iii.  348. 
V.  Hemingway,  ii.  256. 
V.  Henson,  i.  395. 
V.  Judd,  iii.  272,  471. 
V.  Kelley,  i.  356,  410,  411,  424. 
V.  Lassiter,  ii.  221. 
V.  Logan,  i.  199. 

V.  Mason,  i.  57, 166, 174, 175. 177 
V.  Mavnard,  ii.  186. 
V.  MaVor,  &c.,  ii.  292. 
V.  Mil'lett,  i.  237. 
V.  Morris,  i.  511,516. 
V.  Moss,  i.  28. 
V.  Myers,  i.  123. 
V.  Nash,  i.  588. 
V.  Norton,  ii.  375.     . 
V.  Ormsby,  iii.  319. 
V.  Rainsford,  iii.  403,  429. 
V.  Smith,  i.  535. 
V.  Stonestreet,  ii.  43,  60,  62. 
V.  Thomas,  i.  585. 
V.  Thompson,  i.  134,  584, 585,  597 
V.  Townshend,  iii.  87,  88,  121. 
V.  Walker,  i.  279,  288. 
V.  Wetherell,  i.  252 ;  ii.  174,  255, 

260,  478. 
V.  Wright,  ii.  523. 
Davis's  Appeal,  i.  420. 
Davison  v.  Davison,  i.  327. 
V.  Gent,  i.  548. 
V.  Jolionnot,  iii.  216,  217. 
V.  Wilson,  i.  623. 
Davol  V.  Hawland,  i.  244. 
Davoue  v.  Fanning,  ii.  73,  81. 
Dawley  v.  Avers,  i.  354. 
Dawson  v.  Shirlev,  i.  249  ;  iii.  259. 

V.  St.  Paul's,  iii.  99. 
Day,  ex  parte,  iii.  504. 

V.  Adams,  i.  392,  418  ;  iii.  276,  385, 

474. 
V.  Cochrane,  i.  174,  175,  178,  181 ; 

iii.  142. 
V.  Dunham,  ii.  44. 
V.  Griffith,  iii.  296. 
V.  Patterson,  ii.  206. 
V.  Roth,  ii.  532. 
i;.  Swackhamer,  i.  503,  517. 
V.  Watson,  i.  532,  534. 
Dayton  v.  Warren,  iii.  492. 
Dean  v.  Comstock,  i.  590. 
V.  Erskine,  iii.  425. 
V.  Fuller,  iii.  277. 
V.  Mitchell,  i.  204. 
V.  O'Meara,  i.  678. 
V.  Spinning,  ii.  171. 
V.  Siielby,iii.  115,484. 
Dearborn  v.  Dearborn,  ii.  66,  112. 
V.  Eastman,  iii.  250. 
V.  Taylor,  ii.  214. 
Deardorff  y.  Foresman,  iii.  290, 300,  301. 
Dealing  v.  Thomas,  i.  368,  407,  421. 


TABLE   OF    CASES    CITED. 


xllii 


Dearing  v.  W<atkins,  ii.  145. 
Dearmond  v.  Dearmond,  iii.  284,  287. 
Deaver  v.  Parker,  ii.  163. 

V.  Rice,  i.  576. 
Debow  V.  Colfax,  i.  134, 135. 

V.  Titus,  i.  9. 
Decaton  v.  Strickland,  i.  603. 
De  Cliaumont  v.  Forsythe,  iii.  469,471. 
Deck's  Appeal,  i.  665. 
Decker  v.  Freeman,  iii.  205. 

V.  Livingston,  i.  521,  665. 
Deckert,  //;  re,  i.  344. 
Decouche  v.  Savetier,  iii.  163. 
Deem  v,  Phillips,  iii.  244. 
Deemarest  v.  Wynkoop,  ii.  96. 
Deere  v..  Chapman,  i.  345,  347,  355,  365. 
Deerfield  v.  Arms,  iii.  57,  59,  430. 
Deering  v.  Adams,  ii.  496. 
Deery  v.  Cray,  iii.  399,  431. 
De  Forest  v.  Byrne,  i.  499. 

V.  Fulton  Ins.  Co.,  ii.  230. 
V.  Hough,  ii.  187. 
De  France  v.  De  France,  ii.  67. 
Deg  V.  Deg,  ii.  484. 
De  Grey  v.  Richardson,  i.  175. 
De  Haven  v.  Landell,  ii.  239. 
Delahay  v.  Clement,  ii.  248. 
V.  McConnell,  ii.  43. 
Dejain  v.  Kernan,  ii.  42,  52. 
De  Lancy  v.  Ganong,  i.  479,  565. 

V.  Ga  Nun,  i.  571. 
Delaney,  Estate  of,  i.  353. 
V.  Boston,  ii.  357. 
V.  Fox,  i.  555,  559,  561,  562, 

566,  567,  569. 
V.  Root,  i.  577  ;  iii.  345. 
Delano  v.  Montague,  i.  614,  619. 

V.  Wilde,  ii.  29,  179 ;  iii.  220. 
Delaplaine  v.  Hitchcock,  iii.  81. 

V.  Lewis,  ii.  254. 
Delashman  v.  Barrj'^,  i.  441. 
Delaunay  v.  Burnett,  iii.  201. 
Delay  v.  Vinal,  i.  326. 
Dellinger  v.  Tweed,  i.  401. 
Delmonico  v.  Guillaume,  i.  668,  669. 
Delony  v.  Hutchison,  i.  666,  669,  671 ; 

ii.  143. 
Demarest  v.  Willard,  i.  499,  620,  521 ; 
ii.  137,  286. 
V.  Wynkoop,  ii.  141. 
Deming  v.  Bullitt,  iii.  272. 
V.  Colt,  i.  668. 

V.  Comings,  ii.  158,  190,  242. 
Den  V,  Adams,  i.  604. 
V.  Ashmore,  i.  565. 
V.  Blair,  i.  610. 
V.  Branson,  i.  672. 
V.  Brown,  ii.  196. 
V.  Cassells,  iii.  426. 
V.  Clark,  iii.  248. 
V.  Cox,  ii.  699. 
V.  Crawford,  ii.  436,  448. 
V.  Crawson,  i.  484. 
V.  Demarest,  i.  174 ;  ii.  550,  607. 
V.  Dimon,  ii.  118,  131,  133,  166. 


Den  V.  Drake,  i.  GIO. 

V.  Edmonston,  i.  590. 

V.  Farlee,  iii.  294. 

V.  Flora,  iii.  16. 

V.  Gustin,  i.  559. 

V.  Hampton,  iii.  371. 

V.  Hanks,  ii.  425, 443;  iii.  368,  369, 

370,  371,  373. 
V.  Hardenbergh,  i.  332. 
V.  Hay,  iii.  264. 
V.  Herring,  iii.  426. 
V.  Howell,  i.  585,  586. 
V.  Hunt,  iii.  128,  149,  150, 151, 152. 
V.  Johnson,  i.  250,  446,  447. 
V.  lunney,  i.  142. 
V.  Ivip,  iii.  162. 
V.  Lawshee,  i.  339. 
V.  Lloyd,  i.  571. 
V.  Manners,  ii.  713 ;  iii.  52.3. 
V.  Mcintosh,  i.  610. 
V.  O'Hanlon,  iii.  48. 
V.  Porter,  iii.  300. 
V.  Post,  i.  473,  474,  479. 
V.  Puckey,  ii.  581. 
V.  Rickman,  iii.  318,  321,  324. 
V.  Schenck,  i.  111. 
V.  Sharp,  iii.  144. 
V.  Shearer,  iii.  331. 
V.  Singleton,  iii.  213. 
V.  Spinning,  ii.  128,  190,  248. 
V.  Troutman,  ii.  514,  516,  523. 
V.  Tunis,  ii.  241. 
V.  Wheeler,  iii.  230. 
V.  Whittemore,  i.  332. 
V.  Wood,  iii.  528. 
V.  Wright,  ii.  102,  524. 
Dendy  v.  Nichol,  i.  482. 
Denham  v.  Holeman,  iii.  136,  138,  141. 
Denn  v.  Brewer,  iii.  103. 
V.  Cornell,  iii.  102. 
V.  Gillot,  i.  106. 
V.  King,  iii.  99. 
V.  Rooke,  u.  638,  665. 
Dennett  v.  Dennett,  i.  Ill,  120, 182  ;  ii. 
436, 445, 540,  580,  589,  607 ; 
iii.  249. 
V.  Pass,  ii.  288. 
V.  Penobscot  Co.,  i.  593. 
Denning  v.  Smith,  ii.  76 ;  iii.  218,  224, 

229. 
Dennis  v.  McCagg,  ii.  515. 

V.  Wilson,  ii.  333  ;  iii.  433,  436. 
Dennison  v.  Goehring,  ii.  470,  487. 

V.  Reed,  i.  479. 
Denny  v.  Allen,  ii.  529. 
Denton  v.  Nanny,  i.  295  ;  ii.  255. 

V.  Perry,  iii.  293. 
Dentzel  v.  Waldie,  iii.  212,  259. 
De  Peyster  v.  Michael,  ii.  14  ;  iii.  190. 
Derby  Bank  v.  Landon,  ii.  241. 
Deputy  V.  Stapleford,  iii.  260,  339. 
Derby  (Earl  of)  v.  Taylor,  i.  510. 
Derry  Bank  v.  Webster,  iii.  284,  292, 

296. 
Derush  v.  Brown,  i.  204,  208. 


xliv 


TABLE   OF   CASES   CITED. 


Descarlett  v.  Dennett,  ii.  22. 
Desilver,  Estate  of,  i.  65,  455. 

Matter  of,  iii.  249. 
Desloge  v.  Tearce,  i.  685;  ii.  378. 

V.  Kanfier,  ii.  60. 
Despard  v.  Walbridge,  i.  559,  560,  561 ; 

ii.  51. 
De  Uprey  v.  De  Uprey,  i.  683. 
Deuster  v.  MoCamus,  ii.  211. 
Devacht  v.  Newsani,  i.  563. 
Devens  v.  Bower,  ii.  244. 
Devin  v.  Hendershott,  ii.  78 ;  iii.  471, 
473. 
V.  Hinier,  iii.  243. 
Devinney  v.  Reynolds,  iii.  279. 
Devore  v.  Sunderland,  iii.  451, 452,  457. 
Devyr  v.  Schaeffer,  iii.  148. 
Dewey  v.  Brown,  i.  666. 
V.  Dupuy,  i.  504. 
V.  McLane,  iii.  207. 
V.  Van  Deusen,  ii.  141,  257. 
De  Witt  I'.  Harvey,  i.  683,  684. 

V.  Moulton,  ii.  147 ;  iii.  319. 
V.  San  Francisco,  i.  643. 
De  Wolf  r.  Hayden,  iii.  483,  491. 

V.  Pratt,  iii.  235. 
Dexter  v.  Arnold,  i.  657  ;  ii.  141,  159, 
168,  175,  177,  181,  234. 
V.  Gardner,  iii.  515,  526. 
V.  Hazen,  i.  634. 
V.  Manley,  i.  488,  544. 
V.  Prov.  Aq.  Co.,  ii.  356. 
Dey  V.  Dunham,  ii.  61. 
De  Young  v.  Buchanan,  i.  603. 
Dezell  V.  Odell,  i.  556 ;  iii.  71. 
Diament  v.  Lore,  iii.  529. 
Dibble  v.  Rogers,  iii.  88. 
Dick  V.  Mawry,  ii.  118,  122. 
Dicken  v.  Johnson,  iii.  248. 
Dickenson  v.  Chase,  ii.  92. 
Dickey  v.  McCullough,  i.  471 ;  ii.  12. 

V.  Thompson,  ii.  206. 
Dickinson  v.  Brown,  iii.  197,  198. 
V.  Davis,  ii.  474. 
V.  Goodspeed,  i.  604,  608. 
V.  G.  J.  Canal  Co.,  ii.  354, 

355,  356. 
V.  Hoomes,  ii.  284 ;  iii.  452, 

453,  456,  466,  469,  470. 
V.  Williams,  i.  661. 
Dickson  v.  Chorn,  i.  411;  u.  216,  219, 220. 

V.  Todd,  ii.  252. 
Digges'  case,  ii.  643,  070. 
Dighton  V.  Tonilinson,  ii.  649. 
Dikes  V.  Miller,  ii.  370 ;  iii.  60,  62,  67, 

285,  292. 
Dillingham  v.  Brown,  iii.  155. 
V.  Jenkins,  i.  466. 
Dillon  V.  Brown,  i.  461,  597,  667. 
V.  Byrne,  i.  406  ;  ii.  186. 
V.  Dillon,  i.  122. 
Dilworth  v.  Mayfield,  i.  668,  670. 
Dimock  v.  Van  Bergen,  i.  603. 
Dimond  v.  Billingslea,  i.  223. 
Dinehart  v.  Wilson,  i.  573,  574,  575. 


Dingley  v.  Dinglev,  ii.  550,  552,  613. 

V.  Bufliim,  i.  437, 515,  568,  682. 
Dingman  v.  Kelly,  i.  450. 
Dinsdale  v.  lies,  i.  585. 
Dinsmore  v.  Pac.  &  Miss.  R.  R.,  ii.  157. 
Dinsmore  Co.  v.  Dinsmore,  i.  646. 
Dippers  at  Tunbridge  Wells,  i.  333. 
Dix  V.  Wyck,  ii.  176. 
Dixon  V.  Baty,  i.  556. 

V.  Doe,  iii.  323,  324. 
i;.  Lacost,  iii.  316. 
V.  Nicolls,  i.  620,  521,  674. 
V.  Saville,  i.  202. 
Doane  v.  Badger,  i.  663,  664 ;  ii.  338, 366. 
V.  Broad  St.  Assoc,  iii.  396,419. 
V.  Doane,  i.  123,  363,  392. 
V.  Willcutt,  iii.  112, 260,  398,  418, 
419. 
Dobell  V.  Stevens,  iii.  492. 
Dobson,  Goods  of,  iii.  527. 

V.  Land,  ii.  230,  231. 
V.  Racej%  ii.  74. 
Dockham  v.  Parker,  i.  575. 
Dodd  V.  Acklom,  i  549,  550. 

V.  Holme,  ii.  360. 
Dodds  V.  Dodds,  i.  348,  .386. 
Dodge  V.  Aycrigg,  i.  246. 

V.  Dodge,  i.  325 ;  iii.  307. 
V.  Hollinshead,  iii.  315,  327. 
V.  McClintock,  i.  629,  630. 
V.  Nichols,  iii.  257,  425. 
V.  Walley,  iii.  397,  399. 
Dodson  V.  Bail,  ii.  598. 
Dodson's  Appeal,  i.  378. 
Doe  V.  AbernatJiv,  iii.  250. 
V.  Allen,  i.  482. 
V.  Archer,  i.  608. 
V.  Ashburuer,  i.  449,  452. 
V.  Austin,  i.  566,  667. 
V.  Baker,  i.  602. 
V.  Bancks,  i.  482,  484. 
V.  Bank  of  Cleveland,  ii.  143. 
V.  Barnard,  iii.  145. 
V.  Barthrop,  ii.  469,  495. 
V.  Barton,  i.  566,  567 ;  ii.  138,  168, 

171  ;  iii.  91. 
V.  Bateman,  i.  511,  512. 
V.  Batten,  i.  606. 
V.  Beardsley,  iii.  186, 187, 191,  319, 

324,  377. 
V.  Bedford,  iii.  230. 
V.  Bell,  i.  599,  616. 
V.  Benjamin,  i.  449,  451,  452. 
V.  Bevan,  i.  473. 
V.  Biggs,  ii.  458,  467. 
t;.  Birch,  i.  478. 
V.  Bird,  i.  657 ;  iii.  160. 
V.  Blacker,  iii.  279,  280. 
V.  Bliss,  i.  471,  472,  483. 
V.  Bolton,  ii.  466. 
V.  Bond,  i.  477. 
V.  Botts,  i.  665. 
V.  Brabant,  ii.  573. 
V.  Britain,  ii.  638, 644. 
V.  Brown,  i.  445. 


TABLE   OP   CASES   CITED. 


xlv 


Doe  V.  Burlington,  i.  147. 
V.  Burnsall,  ii.  689. 
V.  Burt,  i.  17. 
V.  Campbell,  iii.  141,  145. 
V.  Carletou,  ii.  686,  719. 
V.  Challis,  ii.  577. 
V.  Cliamberlaine,  i.  590. 
V.  Charlton,  ii.  604. 
V.  CoUier,  ii.  434,  458,  466. 
V.  Collins,  iii.  396. 
V.  Collis,  ii.  604;  iii.  526. 
V.  Considine,  i.  83,  84;  ii.  495,  539, 

542,  543,  545,  552,   565,  575, 

688,  696. 
V.  Cooper,  i.  571;  i.  582. 
V.  Cox,  i.  589,  608. 
r.  Crago,  i.  602. 
V.  Crick,  i.  607. 
V.  Croft,  iii.  191. 

V.  Davies,  i.  589 ;  ii.  495,  497,  603. 
V.  Dawdall,  iii.  103,  109,  120,  475. 
V.  Day,  i.  440. 
V,  Deavors,  iii.  222. 
V.  Deery,  i.  449. 
V.  Dignowitty,  iii.  248. 
V.  Dixon,  i.  441. 
V.  Donovan,  i.  598,  607. 
j;.  Douglass,  iii.  217. 
V.  Dunbar,  i.  609. 
V.  Durden,  iii.  159. 
V.  Edgar,  iii.  162. 
V.  Edlin,  ii.  497. 
V.  Ellis,  ii.  709. 
■'  V.  Errington,  1.4-35;  iii.  117. 
V.  Ewart,  ii.  469,  496,  497,  705. 
V.  Eyre,  ii.  654. 
V.  Field,  ii.  434,  469. 
V.  Fonnereau,  ii.  598,  683,  688,  689. 
V.  Ford,  ii.  -571. 
V.  Fridge,  iii.  2.55. 
V.  Gatacre,  i.  99 ;  ii.  589. 
V.  Giles,  ii.  101. 
V.  Glover,  i.  80  ;  ii.  544. 
r.  Goffe,  ii.  602. 
V.  Goldwin,  i.  607. 
V.  Gregory,  iii.  138,  142. 
V.  Gwinnell,  i.  286,  289. 
V.  Hales,  ii.  136. 
V.  Harborough,  iii.  142. 
V.  Harvey,  ii.  602. 
V.  Hazell,  i.  610. 
V.  Hilder,  ii.  340. 
V.  Hogg,  i.  480. 
V.  Holme,  ii.  550. 
V.  Homfray,  ii.  434,  459,  467. 
V.  Hopkinson,  iii.  547. 
V.  Howard,  i.  608. 
V.  Howell,  ii.  691 ;  iii.  99. 
V.  Howland,  i.  G72. 
V.  Hughes,  i.  608,  609. 
V.  Hull,  i.  616,  620  ;  iii.  127. 
V.  Humphreys,  i.  606. 
V.  Hurd,  iii.  335,  368. 
V.  Ironmonger,  ii.  600. 
V.  Jackson,  i.  607. 


Doe  V.  Jauneey,  iii.  138,  142,  146. 
V.  Jepson,  i.  477. 
V.  Johnson,  i.  608. 
V.  Jones,  i.  556. 
V.  Keightly,  i.  608. 
V.  Knight,"  iii.  288,  289. 
V.  Lambly,  i.  609. 
V.  Lanius,  iii.  17. 
V.  Lansing,  i.  480. 
V.  Lawby,  iii.  142. 
V.  Lazenby,  i.  74. 
V.  Lea,  ii.  579. 
V.  Lewis,  i.  498. 
V.  Lock,  iii.  433,  440,  441. 
V.  Long,  i.  570. 
V.  Lucas,  i.  609. 
V.  Luxton,  i.  121,  122. 
V.  Lyde,  ii.  723. 
V.  Mace,  ii.  136. 
V.  Martin,  ii.  448,  647 ;  iii.  397. 
V.  Masters,  i.  481,  482. 
V.  M'Cullough,  iii.  87,  89. 
V.  McKeay,  i.  585,  587,  590. 
V.  McKilvain,  iii.  185. 
V.  McLoskey,  ii.  110,  118. 
V.  Meakin,  iii.  436. 
I'.  Miller,  i.  590. 
V.  Moore,  ii.  579. 
V.  Morgan,  ii.  587,  682,  688. 
V.  Morphett,  i.  607,  608. 
t;.  Murrell,  i.  557. 
V.  Naylor,  iii.  ,j22. 
V.  Nelson,  iii.  238. 
V.  Nichols,  il.  496,  497. 
V.  Nowell,  ii.  551 ;  iii.  548. 
V.  Nutt,  i.  304. 
V.  Oliver,  ii.  592. 
V.  Palmer,  i.  606. 
V.  Passingham,  ii.  447,  466. 
V.  Paul,  i.  481. 
V.  Pearson,  i.  81 ;  ii.  9. 
V.  Peck,  i.  499. 
V.  Pegge,  ii.  170. 
V.  Pendleton,  ii.  102. 
V.  Perryn,  ii.  550,  556,  575,  588. 
V.  Phillips,  i.  479,  559. 
V.  Porter,  i.  597,  604,  613. 
V.  Prettyman,  iii.  249,  322. 
V.  Prigg,  ii.  550,  552. 
V.  Prince,  i.  58-5. 

V.  Prosser,  i.  658  ;  ii.  493 ;  iii.  120. 
V,  Provoost,  ii.  550,  552,  588. 
V.  Raff  an,  i.  599. 
V.  Reddin,  iii.  320. 
V.  Reed,  ii.  819 ;  iii.  324,  325. 
V.  Rees,  i.  556. 
V.  Reynold,  i.  565,  671. 
V.  Richards,  i.  86,  583. 
V.  Ries,  i.  449,  451. 
V.  Rivers,  i.  175. 
V.  Robinson,  i.  120. 
V.  Rock,  i.  500. 
V.  Rusham,  iii.  337. 
V.  Salkeld,  ii.  417. 
V.  Scott,  iii.  523,  524. 


xlvi 


TABLE  OF    CASES   CITED. 


Doe  V.  Scudamore,  i.  178. 

V.  Seaton,  i.  502,  567  ;  iii.  91. 

V.  Selby,  ii.  541,  645,  577,  689,  690. 

V.  Sheffield,  iii.  523,  524. 

I'.  Slieppard,  iii.  16. 

I'.  Sliipphard,  ii.  573. 

V.  Simpson,  i.  561. 

V.  Smitli,  i.  462,  608 ;  iii.  319. 

V.  Smytlie,  i.  565,  567  ;  iii.  642. 

V.  Snowdon,  i.  608. 

V.  Spence,  i.  608. 

V.  Stapleton,  1.  608. 

V.  Stevens,  i.  477. 

V.  Stevenson,  ii.  720. 

V.  Stewart,  iii.  524. 

V.  Sturges,  i.  459. 

V.  Summersett,  i.  609. 

V.  Thomas,  i.  586. 

V.  Tidbury,  i.  456. 

V.  Timins,  ii.  496. 

V.  Tunnell,  ii.  169. 

V.  Turner,  i.  135,  585,  620 ;  iii.  16. 

V.  Underdown,  ii.  551 ;  iii.  523,  524. 

V.  Vincent,  ii.  659. 

V.  Walker,  i.  443,  444,  445. 

V.  Wandlass,  i.  480. 

V.  Watkins,  i.  608. 

V.  Watts,  i.  597,  609. 

V.  Webb,  ii.  558. 

V.  Wells,  i.  565. 

V.  Were,  i.  33. 

V.  White,  iii.  137,  148,  152. 

V.  Whittingham,  ii.  622. 

V.  Wilkinson,  i.  608. 

V.  Wing,  iii.  138,  146. 

V.  Wood,  i.  590,  591 ;  ii.  376,  377. 

V.  Worsley,  ii.  557. 

V.  Wroot,  ii.  527. 

Doe  d.  Cox  V. ,  i.  608. 

Doebler's  Appeal,  i.  80 ;  ii.  582,  602,  604, 

707. 
Doidge  I'.  Bowers,  i.  602. 
Dole  V.  Thurlow,  iii.  275. 
Dolfy.Bassett,  1.236,  292. 
DoUman  v.  Harris,  i.  412. 
Dolph  V.  Barney,  iii.  326,  327. 
Donahue  v.  MeNichols,  ii.  704. 
Donald  v.  Hewitt,  ii.  186. 
Donalds  v.  Phinib,  ii.  516,  517. 
Dongrey  v.  Tapping,  i.  254. 
Donley  v.  Hays,  ii.  121,  122,  203. 
Donnell  v.  Cl.irk,  ii.  325. 
Donnels  v.  Edwards,  i.  671 ;  ii.  143. 

V.  Thompson,  iii.  449. 
Donnelly  v.  Donnelly,  i.  212. 
Doody  V.  Pierce,  ii.  181. 
Dooley  v.  Wolcott,  iii.  317. 
Doolittle  V.  Eddy,  i.  469,  592,  600,  628, 
629,  637. 
V.  Holton,  iii.  210. 
V.  Lewis,  ii.  638,  654,  658. 
V.  Tice,  iii.  141. 
Dorkrav  v.  Noble,  ii.  117. 
Dorn  y.'Beasley,  i.  683. 
V.  Dunham,  i.  655. 


Dorr  V.  Harnahan,  ii.  22. 

V.  Wainwright,  ii.  511. 
Dorrance  v.  Jones,  i.  524. 
Dorrell  v.  Johnson,  i.  621. 
Dorrow  v.  Kelly,  ii.  146, 150. 
Dorsey  v.  Clark,  ii.  480. 
V.  Eagle,  i.  137. 
V.  McFarlaud,  i.  406,  407. 
V.  Smith,  i.  125,  298. 
Doswell  V.  De  La  Lanza,  iii.  136,  138. 
Doten  V.  Hair,  ii.  245. 
Doty  V.  Gorham,  i.  4. 
Dougal  V.  Fryer,  iii.  112. 
Dougherty  v.  McColgan,  ii.  48,  97,  228. 

V.  Randall,  ii.  103,  122. 
Douglas  V.  Congreve,  ii.  601. 

V.  Shumwaj',  i.  14. 
Douglass  r.  Bishop,  ii.  175. 
V.  Brice,  ii.  473. 
V.  Dickson,  i.  218,  236. 
V.  Duren,  ii.  141. 
V.  Scott,  in.  70,  99,  100,  103, 
120. 
Dougrey  v.  Topping,  i.  254. 
Doupe  V.  Genin,  i.  538,  545. 
Dow  V.  Clark,  ii.  209. 
V.  Dow,  i.  188. 
V.  Gould,  iii.  259. 
V.  Jewell,  i.  685 ;  ii.  478, 479,  492 ; 
iii.  163,  246,  248. 
Dowd  V.  Tucker,  ii.  486. 
Dowling  V.  Hennings,  ii.  323,  363,  364. 
Downer  v.  Clement,  ii.  252,  253,  254. 
V.  Fox,  ii.  254. 
V.  Smith,  i.  686  ;  iii.  359. 
V.  Wilson,  ii.  132,  173,  175. 
Downes  v.  Grazebrook,  ii.  73,  74,  483, 

484,  516,  525. 
Downing  v.  Marshall,  ii.  532;  iii.  510, 
520. 
V.  Palmateer,  ii.  150,  248, 265. 
V.  Wherrin,  ii.  700. 
Doyle  V.  Coburn,  i.  349,  387,  399,  413; 
ii.  244. 
V.  Howard,  ii.  75. 
Doyley  i-.  Attorney-General,  ii.  513. 
Dozier  v.  Gregory,  i.  148. 
Drake  v.  Newton,  i.  614. 

V.  Ramsay,  i.  456,  458  ;  iii.  250, 

251. 
V.  Wells,  i.  13,  14  ;  iii.  352. 
Drane  v.  Gregory,  i.  560,  571,  646,  686. 

V.  Gunter,  ii.  508. 
Draper  v.  Baker,  ii.  132. 

V.  Jackson,  i.  672. 
Drayton  v.  Grimke,  ii.  662. 

V.  Marshall,  ii.  183,  250. 
Dreutzer  v.  Bell,  i.  419;  iii.  333. 
Drew  V.  Kimball,  iii.  74,  83. 
V.  Rust,  ii.  212 ;  iii.  79. 
V.  Smith,  ii.  35,  264  ;  iii.  403. 
V.  Swift,  iii.  405,  425. 
V.  Wakefield,  ii.  510  ;  iii.  518, 525. 
Drexel  v.  Miller,  iii.  489. 
Drinkwater  v.  Drinkwater,  i.  518. 


TABLE   OP   CASES   CITED. 


xlvii 


Drown  v.  Smith,  i.  141 ;  ii.  453  ;  iii.  375. 
Drum  V.  Simpson,  ii.  480. 
Drummond  v.  Richards,  ii.  49. 
Drury  v.  Drury,  i.  316,  319,  320. 
V.  Foster,  iii.  241. 

I'.  Tremont,  ii.  209,  375. 
Drybutter  v.  Bartliolomew,  i.  18. 
Dryden  v.  Jepherson,  iii.  390. 
Dubois  V.  Beaver,  i.  12;  ii.  363,  364. 

V.  Hull,  ii.  90. 

V.  Kelly,  i.  437. 
Dubose  V.  Young,  iii.  318. 
Dubs  V.  Dubs,  i.  166,  169,  179,  205. 
Dubuque  v.  Maloney,  iii.  420. 
Dubuque  R.  R.  v.  Litchfield,  iii.  190. 
Duchess  of  Norfolk  v.  Wiseman,  i.  632. 
Ducker  v.  Belt,  ii.  252. 
Dudden  v.  Guardians,  ii.  352,  355,  356. 
Dudley  v.  Cadwell,  ii.  97,  106,  122,  128. 

V.  Lee,  i.  611. 

V.  Sumner,  iii.  181,  311. 
Duff  V.  Wilson,  i.  567. 
Duffield  V.  Duffield,  ii.  550 ;  iii.  548. 
Duffy  V.  Calvert,  ii.  514,  528. 

V.  N.  Y.  &  Harlem  R.  R.,  ii.  367 ; 
iii.  462,  470. 
Dufour  V.  Pereira,  iii.  503,  504. 
Dugal  V.  Gettings,  iii.  236. 
Dugan  V.  Hollins,  i.  688. 
Dugdale  v.  Robertson,  ii.  362,  364. 
Duliring  v.  Duhring,  i.  201. 
Duinneen  v.  Rich,  ii.  304. 
Duke  V.  Harper,  i.  565,  570,  571,  587 ; 

iii.  160. 
Dulanty  v.  Pynchon,  i.  424. 
Dummerston  v.  Newfane,  i.  302. 
Dumpor's  case,  i.  471,  472;  ii.  12. 
Duncan  v.  Dick,  i.  190. 

V.  Duncan,  i.  323. 

V.  Forrer,  i.  644,  648. 

V.  Hodges,  iii.  240. 

V.  McNeill,  ii.  185., 

V.  Sylvester,  i.  655,  679. 
Duncomb  v.  Duncomb,  i.  195,  198. 
Dunch  V.  Kent,  ii.  528. 
Dundos  V.  Bowles,  ii.  125. 

V.  Hitchcock,  i.  248;    iii.  255, 
257. 
Dungan  v.  Am.  Life  Ins.  Co.,  ii.  145. 
Dunham  v.  Osborn,  i.  195,  215,  258, 259. 
V.  Townshend,  i.  595. 
V.  Williams,  iii.  423. 
Dunker  v.  Chedic,  i.  344. 
Dunklee  v.  Wilton  R.  R.  Co.,  ii.   317, 

374 ;  iii.  384. 
Dunkley  v.  Van  Buren,  ii.  241,  242. 
Dunlap  V.  Stetson,  iii.  411. 
Dunn  V.  Cartriglit,  i.  441. 
V.  Games,  iii.  265. 
V.  Merriweather,  iii.  230. 
V.  Sargent,  i.  192. 
V.  Tozer,  i.  381,  406,  420. 
^        Dunne  v.  Trustees,  &c.,  590,  591. 
Dunscomb  i'.  Dunscomb,  i.  166. 
Dunseth  v.  Bank  of  U.  States,  i.  290. 


Dunshee  v.  Parmelee,  ii.  187,  235. 
Dunton  v.  Woodbury,  i.  424. 
Dunwoodie  v.  Reed,  ii.  576,  577. 
Duppa  V.  Mayo,  i.  480,  481,  482,  484 : 

ii.  281. 
Dupuy  V.  Strong,  i.  665. 
Durand  v.  Isaacs,  ii.  109. 
Durando  v.  Durando,  i.  195. 
V.  Wyraan,  i.  509. 
Durant  v.  Johnson,  i.  653. 
V.  Palmer,  i.  540. 
V.  Ritchie,  i  335;  iii.  253. 
Dure]  V.  Boisblane,  ii.  346. 
Durham  i'.  Angler,  i.  266,  301. 
Durme  v.  Ferguson,  i.  11. 
Dussaume  v.  Burnett,  iii.  319. 
Dustin  V.  Cowdrey,  i.  624,  626. 

V.  Steele,  i.  250. 
Dutton  V.  Gerrish,  i.  544. 
V.  Ives,  ii.  195,  247. 
V.  Rust,  iii.  402. 
V.  Tayler,  iii.  387. 
V.  Warschauer,  ii.  104,  107. 
Duval  V.  Bibb,  ii.  89,  444. 
Dwight  V.  Cutler,  i.  592. 
Dwin  V.  Henderhote,  ii.  101. 
Dwinell  v.  Perley,  ii.  116. 
De  Wolf  V.  Haydn,  iii.  491. 
Dye  V.  Mann,  i.  358,  373,  414,  425. 
Dyer  v.  Clark,  i.  201,  666,  669. 
V.  Depui,  ii.  340. 
V.  Rich,  iii.  106. 

V.  Sanford,  i.  638 ;   ii.  313,   340, 

341,  343,  344,  370,  372;  iii. 

311,  440,  442,  444. 

V.  Toothaker,  ii.  172. 

V.  Wightman,  i.  528,  534, 535,  537. 

Dyett  V.  Pendleton,  i.  528,  530,  532,  533, 

534. 
Dyke  v.  Kendall,  i.  319. 
Dyson  v.  Bradshaw,  iii.  293,  304. 
V.  Sheley,  i.  359. 


E. 


Eadie  v.  Slimmon,  iii.  261. 
Eagle  Fire  Ins.  Co.  v.  Lent,  ii.  258. 
Ins.  Co.  V.  Pell,  ii.  2-30,  258. 
Earl  V.  De  Hart,  ii.  352. 

V.  Grim,  iii.  529. 
Earle  v.  Earle,  i.  249,  427  ;  iii.  258. 
V.  Fisk,  iii.  318,  325. 
V.  Washburn,  ii.  517. 
V.  Wood,  iii.  515. 
Eastabrook  v.  Hapgood,  i.  125. 
Easter  v.  L.  M.  R.  R.,  ii.  286,  313;  iii. 

118. 
Easterbrooks  i'.  Tillinghast,  ii.  472. 
East  Haven  v.  Hemingway,  iii.  417. 
Eastman  v.  Baker,  ii.  707. 

V.  Batchelder,  ii.  66,  112. 
V.  Foster,  5  ;  ii.  215. 
East  Tenn.  &  V.  R.  R.  v.  Love,  iii.  212. 
Eaton  V.  Campbell,  iii.  323. 


xlviii 


TABLE    OF    CASES    CITED. 


Eaton  V.  Eaton,  iii.  249. 

V.  Evfins,  ii.  340  ;  iii.  158. 

V.  Green,  ii.  48.  44,  46,  50,  53,  60. 

V.  Jaqiies,  i.  467. 

V.  Simonds,  i.  226,  227,  229,  231 ; 

ii.  174,  192,  195,  212,  2:35. 
V.  Smith,  iii.  404. 
V.  Swanzea  Water- Works,  ii.  326. 
V.  Wliitin^,  ii.  62,  68,  75,  76,  97, 
119,  139,  159. 
Ebbert's  Appeal,  i.  670. 
Eberle  v.  Fisher,  i.  256. 
Echols  V.  Cheney,  iii.  278. 
Eckhardt  v.  Sohlecht,  i.  427. 
Eckman  v.  Eckman,  iii.  355,  358. 
Eddy  V.  Baldwin,  ii.  475. 
Edge  V.  Strafford,  i.  599,  614. 

V.  Wortliington,  ii.  82. 
Edgerton  v.  Huff,  iii.  342. 
V.  Jones,  iii.  315. 
V.  Page,  i.  490,  528,  529,  532, 

533 
V.  Young,  ii.  194,  261. 
Edmonson  v.  Welsh,  ii.  75. 
Edrington  v.  Harper,  ii.  43,  50,  60. 
Edson  V.  Colburu,  i.  573. 

V.  Munsell,  i.  682  ;  ii.  320,  329, 
366 ;  iii.  54,  165. 
Edwards,  ex  parte,  ii.  83. 

V.  Bohannon,  ii.  92. 
V.  Brinker,  iii.  323. 
V.  Edwards,  ii.  479. 
V.  Freeman,  ii.  425. 
V.  Gibbes,  ii.  721. 
V.  Hale,  i.  017,  621. 
V.  Hammond,  ii.  579. 
V.  Parkhurst,  iii.  331. 
V.  Pope,  iii.  213,  214. 
V.  Roys,  iii.  331. 
V.  Slater,  ii.  639,  641,  643. 
V.  Smith,  iii.  358. 
V.  Trumbull,  ii.  84. 
V.  Varick,  ii.  696,  700,  714. 
Effenger  v.  Lewis,  i.  583  ;  iii.  132. 
Egerton  v.  Brownlow,  ii.  406,  487,  614, 

618. 
Eifert  v.  Reed,  iii.  153. 
Elder  v.  Burrus,  iii.  415. 
V.  Riel,  i.  243. 
V.  Rouse,  ii.  49. 
Eldredge  v.  Forrestal,  i.  195. 
Eldridge  v.  Eldridge,  ii.  551. 
Elfe  V.  Cole,  ii.  107,  109. 
Eli  V.  Gridley,  i.  410,  411. 
Elias  V.  Verdugo,  i.  368. 
Eliot  V.  Carter,  iii.  396. 

V.  Eliot,  iii.  505. 
Elkins  V.  Edwards,  ii.  183,  187. 
Ellicott  V.  Ellicott,  iii.  15. 

V.  Mosier,  i.  278,  280. 
V.  Pearl,  i.  59  ;  iii.  150,  152. 
V.  Welch,  i.  207  ;  ii.  88. 
EUiotson  V.  Feetham,  ii.  366. 
Elliott  V.  Aiken,  i.  491,  550. 

V.  Aikin,  i.  506,  532,  539,  545. 


Elliott  V.  Fitchburg  R.  R.,  ii.  349. 
V.  Maxwell,  ii.  61,  60. 
V.  Patton,  ii.  174,  180. 
V.  Pearce,  iii.  255. 
V.  Rhett,  ii.  315,  3.37,  339,  372. 
j;.  Sleeper,  ii.  186  ;  iii.  257,  266, 

271,275. 
V.  Smith,  i.  130,  560,  562. 
V.  Stone,  i.  475,  589,  598,  599, 

600,  017. 
V.  Turner,  ii.  22. 
V.  Wood,  ii.  73,  74,  238. 
Ellis  V.  Boston,  H.,  &  Erie  R.  R.,  ii.  661. 
V.  Gary,  iii.  415. 
V.  Diddy,  i.  254. 
V.  Drake,  ii.  251,  260. 
V.  Duncan,  ii.  355. 
V.  Ellis,  i.  280. 
V.  Essex  Bridge,  iii.  529. 
V.  Fisher,  ii.  495. 
V.  Higgins,  ii.  52. 
V.  Kinyon,  ii.  47. 
V.  Martin,  ii.  260. 
V.  Murray,  iii.  164. 
V.  Page,  i.  588,  597,  604. 
V.  Paige,  i.  585  ;  iii.  18,  541. 
V.  Selby,  iii.  535. 
V.  Welch,  i.  528 ;  iii.  474. 
Ellison  V.  Daniels,  ii.  97,  111,  118,  166. 
V.  Pecare,  ii.  146. 
V.  Wilson,  iii.  316. 
Ellston  V.  Kennicotte,  iii.  155. 
Ellsworth  V.  Cook,  i.  175. 

V.  Lockwood,  ii.  75,  215,  240. 
Elmendorf  v.  Carmichael,  iii.  190. 

V.  Taylor,  ii.  182. 
Elmore  v.  Elmore,  i.  353. 
V.  Marks,  iii.  284. 
Elms  V.  Randall,  i.  561. 
Else  V.  Osborn,  ii.  431. 
Elsey  V.  Metcalf,  iii.  286,  292,  29.3. 
Elston  V.  Robinson,  i.  348,  357,  397. 
Elvvell  V.  Burnside,  i.  661. 

V.  Shaw,  i.  449  ;  iii.  272, 277,  278. 
Elwes  V.  Maw,  i.  27. 
Elwood  V.  Black,  iii.  2.56. 

V.  Klock,  i.  2.50,  258,  200,  304. 
Elworthy  v.  Sanford,  i.  447. 
Ely  V.  Eastwood,  i.  409. 

V.  Ely,  ii.  94,  245,  248 ;  iii.  246. 
V.  Seofield,  ii.  190. 
V.  Wilcox,  iii.  310,  317,  319. 
Emans  v.  Turnbull,  iii.  54,  55,  59. 
Emanuel  v.  Hunt,  ii.  122. 
Embree  v.  Ellis,  i.  236,  237,  282. 
Embry  v.  Owen,  i.  69 ;  ii.  348,  349,  369. 
Emerick  v.  Kohler,  iii.  425. 
Emerson  v.  Fisk,  i.  6.32. 
V.  Harris,  i.  223. 
V.  Heelis,  i.  11 ;  iii.  346. 
V.  Mooney,  iii.  436. 
V.  Murray,  ii.  55. 
V.  Simpson,  ii.  8. 
V.  Spicer,  i.  4-59. 
V.  Taylor,  iii.  430. 


TABLE    OF    CASES    CITED. 


xlix 


Emerson  v.  Wliite,  iii.  18. 

V.  Wiley,  ii.  339,  371 ;  iii.  99. 
Emery  v.  Barnett,  in  re,  i.  566,  567. 

V.  Chase,  ii.  424,  442,  453;  iii. 
364. 
Emmons  v.  Murray,  iii.  2-50,  317. 

V.  Scudder,  i.  619. 
Emory  v.  Turnbull,  iii.  420. 
Endsworth  v.  Griffith,  ii.  59. 
Enfield  u.  Day,  iii.  191. 

V.  Permit,  iii.  191,  205. 
Engels  V.  McKinley,  i.  523. 
England  v.  Slade,  i.  561. 
English  V.  Johnson,  ii.  381. 

•  V.  Lane,  ii.  43,  50,  60. 
V.  Russell,  ii.  93. 
V.  Wright,  i.  237. 
Enuis  V.  Harmony  Ins.  Co.,  ii.  234. 
Eno  V.  Del  Vecchio,  ii.  313,  362,  363. 
Ensign  v.  Colburn,  ii.  136. 
Ensley  i'.  Balantine,  ii.  476. 
Ensminger  v.  People,  iii.  414. 
Epley  V.  Witherow,  iii.  75. 
Epping  V.  Swanzea,  i.  527. 
Erh  V.  Brown,  ii.  341 ;  iii.  79. 
Erickson  i-.  Willard,  ii.  506. 
Erskine  v.  Townsend,  ii.  34,  36,  43,  45, 
100,  106,  110,  112,  159,  162,  172,  260. 
Ervine's  Appeal,  iii.  215. 
Erwin  v.  Helme,  iii.  223. 

V.  Olmstead,  i.  658,  659 ;  iii.  151. 
V.  Shuey,  ii.  46,  114. 
Eskridge  v.  McClure,  ii.  92,  94 
Esling  V.  Williams,  ii.  330. 
Essex  Co.  V.  Durant,  ii.  520. 
Esson  V.  McMasters,  iii.  415. 
Estabrook  v.  Hapgood,  i.  298. 
V.  Moulton,  ii.  248. 
V.  Smith,  iii.  463,  475,  476, 
478,  487,  495. 
Estep  V.  Estep,  i.  490. 

V.  Hutchman,  iii.  216,  217. 
Estes  V.  Cook,  iii.  133. 
V.  Kelsey,  i.  627. 
Esty  V.  Baker,  i.  58.5,  599,  619;  iii.  396, 
398,  405. 
V.  Clark,  iii.  523. 
V.  Currier,  iii.  389,  396,  435. 
Eustace  u.  Scawen,  i.  648. 
Euston  V.  Friday,  ii.  187. 
Evans  V.  Brittain,  i.  653. 

V.  Elliot,  i.  561 ;  ii.  138. 

V.  Evans,  i.  34,  172,  263,  266. 

j;.  Gale,  iii.  260. 

V.  Gibbs.  iii.  305. 

V.  Good  let,  ii.  90. 

V.  Huffman,  ii.  183. 

V.  Inglehart,  i.  133. 

V-  Kimball,  ii.  195. 

V.  King,  ii.  487,  496,  503. 

V.  Merriken,  ii.  102. 

V.  Norris,  ii.  66. 

V.  Pierson,  i.  324. 

V.  Reed,  i.  618. 

V.  Roberts,  i.  11, 14 ;  iii.  343,  346. 


Evans  v.  Smith,  iii.  503. 

V.  Thomas,  ii.  134. 

V.  Vaughn,  i.  439. 

V.  Webb,  i.  305,  324. 
Evans'  Appeal,  iii.  530. 
Evansville  v.  Page,  iii.  403 
Eveleth  v.  Cranch,  iii.  101. 
Everett  v.  Everett,  ii.  477. 

V.  Whitfield,  iii.  166. 
Evers  v.  Challis,  ii.  689,  704,  728. 
Everts  v.  Agnes,  iii.  302,  304. 
Evertsen  v.  Sawyer,  i.  560. 
Evertson  v.  Booth,  ii.  219,  220. 
Ewart  V.  Cockrane,  ii.  317. 
Ewer  V.  Hobbs,  i.-682;  ii.  101, 106,  133. 
Ewing  V.  Burnet,  i.  58 ;    iii.    129,  139, 
140,  150,  397. 
V.  Savary,  i.  648;  iii.  331. 
Exeter  v.  Odiorne,  ii.  467. 
Exton  V.  Greaves,  ii.  49,  229. 
Exum  V.  Canty,  iii.  357. 
Eyler  r.  Crabbs,  ii.  89. 
Eyre  v.  Burmester,  ii.  188. 
Eyster  v.  Hatheway,  i.  396  ;  iii.  327. 


F. 

Fahrney  v.  Holsinger,  i.  100. 
Failing  ;;.  Schenck,  i.  438. 
Fair  v.  Stevenot,  iii.  317. 
Fairbanks  v.  Metcalf,  iii.  282,  299,  300, 
302. 
V.  Williamson,  iii.  103. 
Fairchild  v.  Chastelleux,  i.  332,  333,  672 

V.  Rassdall,  ii.  51. 
Fairfax  v.  Montague,  ii.  183. 
Fairfield  v.  McArthur,  ii.  176. 
Fairis  v.  Walker,  i.  25. 
Fairley  v.  Fairley,  iii.  92,  .362. 
Fairman  v.  Bavin,  ii.  483,  524. 

V.  Beal,  iii.  153. 
Fairtitle  v.  Gilbert,  iii.  97. 
Falis  V.  Conway  Ins.  Co.,  ii.  62. 
Falkner  v.  Beers,  i.  5-58. 
Fall  V.  County  Sutter,.ii.  293,  294,  297. 
Falls  Village,  &c.  Co.  v.  Tibbetts,  iii.  422. 
Falls  V.  Reis,  iii.  422. 
Fancher  v.  Montegre,  iii.  402. 
Fancy  c.  Scott,  iii.  433. 
Fanning  v.  Kerr,  ii.  68,  70. 
Fanshaw's  case,  iii.  265. 
Farley  v.  Craig,  i.  518 ;  ii.  278, 280, 281, 
289. 
V.  Thompson,  i.  522. 
Farmer  v.  Peterson,  iii.  329. 
V.  Rogers,  i.  547. 
V.  Samuels,  i.  686. 
V.  Simpson,  i.  365,  403. 
Farmers'  Bank  v.  Bronson,  ii.  147,  169. 
Farmers',  &c.  Bank  v.  Drury,  iii.  284. 
Farmers'  Fire  Ins.  Co.  ;•.  lOdwards,  ii. 

129,  173. 
Farmers'  Loan  Co.  v.  Hendrickson,i.  4, 
16,  17;  ii.  157. 


1 


TABLE   OP   CASES    CITED. 


Farnsworth  v.  Taylor,  iii.  99,  429. 
Farnum  v.  Metcalf,  ii.  174. 
V.  Peterson,  iii.  331. 
V.  Piatt,  ii.  336. 
Farquliarson  v.  Eichelberger,  ii.  496 ; 

iii.  3G7. 
Farr  v.  Smitli,  i.  660. 
Farrall  v.  llilditcli,  iii.  431. 
Farrand  v.  Marshall,  ii.  359. 
Farrant  v.  Lovel,  ii.  136. 
Farrar  v.  Cliauffetete,  i.  24. 
V.  Cooper,  iii.  99. 
V.  Farrar,  iii.  307. 
V.  Fe.«^sentlen,  iii.  137,  150,    152, 

323. 
V.  Stackpole,    i.  15,  22;  iu.  391. 
Farrell  i;.  Bean,  ii.  50. 

V.  Parlier,  ii.  238. 
Farrington  v.  Barr,   ii.  428,    470,  475, 

502;  iii.  377. 
Farrow  v.  Edmunson,  i.  587. 
Farson  v.  Goodale,  i.  598,  606,  611. 
Farwell  v.  Cottinfi,  i.  227,  231,  251,  298 ; 
ii.  255. 
V.  Murphy,  ii.  250. 
V.  Kogers,  iii.  133,  329. 
Fash  V.  Blake,  iii.  359. 
Faught  V.  Holway,  iii.  150. 
Faulkner  v.  Breckenbrough,  ii.  128. 
Faure  v.  Winan.s,  ii.  230. 
Favil  V.  Roberts,  iii.  80. 
Fawcetts  v.  Kinney,  iii.  307. 
Faxon  v.  P^^lvev,  ii.  491 ;  iii.  332. 

V.  Wallace,  iii.  228. 
Fay,  Petitioner,  ii.  293. 

V.  Brewer,  i.  150 ;  ii.  134,  169. 

V.  Cheney,  i.  22(5 ;  ii.  35,  100,  119, 

127,  128,  140. 
V.  Fay,  ii.  470. 

V.  Muzzey,  i.  19,  24 ;  iii.  393. 
V.  Richardson,  iii.  283. 
V.  Sylvester,  ii.  550. 
V.  Taft,  ii.  468. 
t;.  Valentine,  ii.  242. 
Fears  v.  Brooks,  i.  331. 
V.  Lynch,  ii.  524. 
Featter  v.  Strohoecker,  i.  689. 
Feger  v.  Keefer,  iii.  210. 
Fehley  v.  Barr,  i.  4(t2. 
P^lch  V.  Taylor,  i.  503,  523  ;  ii.  34,  101, 

162. 
P'elder  v.  Murphy,  ii.  254. 
Fell  V.  Price,  iii.  210. 

V.  Young,  iii.  322. 
Fellows  V.  Lee,  i.  63. 
Kelton  u.  Hamilton,  iii.  265. 

V.  Simpson,  ii.  324,  326. 
Fenby  v.  Johnson,  ii.  558. 

V.  Simpson,  iii.  312. 
Fenn  v.  Holme,  iii.  196. 

r.  Smart,  i.  476. 
Fentinian  v.  Smitli,  i.  631,  633. 
Fenwick  v.  Floyd,  iii.  399. 
V.  Gill,  iii.  68. 
V.  Mitforth,  ii.  431. 


Feoffees  of    Grammar   School   v.  An- 
drews, iii.  205. 
Ferguson  v.  Hedges,  iii.  513,  524. 
V.  Bell,  iii.  251. 
V.  Kimball,  ii.  203. 
V.  Tweedy,  i.  173. 
Fernald  v.  Linscott,  ii.  103. 
Ferrall  v.  Kent,  i.  573. 
Ferrel  v.  Woodward,  ii.  298,  294. 
Ferrett  v.  Taylor,  iii.  448. 
Ferrin  v.  Kinney,  i.  584,  586,  613. 
Ferris  v.  Brown,  ii.  318 ;  iii.  51. 

i:  Coover,  iii.  79,  226,  406,  424, 

429. 
V.  Crawford,  ii.  49,  208,  210. 
V.  Ferris,  ii.  64. 
V.  Irving,  iii.  278. 
Person  v.  Dodge,  ii.  717. 
Festing  v.  Allen,  iii.  546. 
Fetrow  v.  Merriweatlier,  iii.  332,  371. 
Field  V.  Gooding,  ii.  68. 
V.  Howell,  i.  439. 
V.  Jackson,  i.  161. 
V.  Mills,  i.  473. 
V.  Schifflin,  iii.  548. 
V.  Seabury,  iii.  198. 
V.  Snell,  iii.  473. 
V.  Stagg,  iii.  243. 
V.  Swan,  ii.  138. 
Fifield  v.  Sperry,  ii.  98,  258. 
Fifty  Associates  v.  Howland,  i.  481,  599, 

622 ;  ii.  25,  26. 
Fightniaster  v.  Beasley,  i.  660. 
Filbert  v.  Hoff,  i.  659. 
Filliter  v.  Phippard,  i.  150. 
Filman  v.  Divers,  ii.  484. 
Finch  V.  Brown,  ii.  236. 
V.  Finch,  ii.  480. 
V.  Houghton,  ii.  249. 
V.  Winclielsea,  ii.  514. 
Finch's   (Sir  Moyle)   case,   i.  619;  iii. 

263,  265. 
Findlay  v.  Smith,  i.  142,  143,  144,  145. 
Finlay  v.  King's  Lessee,  ii.  7, 11. 

V.  Simpson,  i.  486. 
Finley  v.  Dietrick,  i.  431. 

V.  McConnell.  i.  396,  409. 
V.  Simpson,  iii.  312. 
V.  U.  S.  P.ank,  ii.  250. 
Finn  v.  Sleight,  i.  239. 
liquet  V.  Allison,  i.  573. 
I  ireraan's  Ins.  Co.  v.  McMillan,  iii.  299. 
Firestone  v.  Firestone,  i.  218. 
First  Parish  v.  Jones,  i.  6. 
Fish  V.  Fish,  i.  206. 
Fisiiar  v.  Prosser,  i.  565,  621 ;  iii.  144, 

160. 
Fishback  v.  Lane,  i.  423. 
Fisher  v.  Beck  with,  iii.  283,  287. 
V.  Deering,  i.  496,  517. 
V.  Dewerson,  i.  677,  680,  681. 
V.  Fields,  i  83  ;  ii.  458,  494.  505. 
V.  Grimes,  i.  194. 
V.  Hall,  iii.  282,  283. 
V.  Johnson,  ii.  88,  92. 


TABLE   OF   CARES   CITED. 


u 


Fisher  v.  Millikin,  i.  534. 

V.  Morgan,  i.  281,  283. 
V.  Mossnuin,  ii.  187 ;  iii.  78. 
V.  Otis,  ii.  122,  12'.),  247. 
V.  Smith,  ii.  429  ;  iii.  422. 
V.  Thirliell,  i.  539. 
Fisher's  Ex'rs  v.  Mossman,  ii.  185. 
Fishwicli  V.  Sewell,  ii.  492. 
Fisk  I'.  Eastman,  i.  195. 

V.  Fisk,  ii.  67,  96,  142. 
V.  Stubbs,  iii.  260. 
Fiske  V.  Fiske,  ii.  67. 
Fitch  V.  Baldwin,  iii.  93,  459. 
V.  Buncli,  iii.  301. 
V.  Cotheal,  ii.  131. 
V.  Fitch,  iii.  95. 
Fitchburg  Cotton  Co.  v.  Melvin,  i.  126, 

522,  526 ;  ii.  137,  166. 
Fite  V.  Doe,  iii.  310. 
Fithian  v.  Monks,  ii.  210. 
Fitton  I'.  Hamilton  City,  i.  596. 
Fitzgerald  v.  Beebe,  i.  561. 
V.  Reed,  i.  455. 
V.  Urton,  ii.  380. 
Fitzhugh  V.  Barnard,  iii.  324,  328. 

V.  Croghan,  iii.  275,  449,  452, 
457. 
Fitzpatrick  v.  Fitzgerald,  ii.  520,  527. 
Flagg  V.  Bean,  i.  182. 

V.  Fames,  iii.  436. 

w.  Flagg,  ii.  Ill,  112;  iii.  213. 

V.  Mann,  i.  686  ;  ii.  43, 44,  48,  50, 

57,58,60;  iii.  97,  98. 
V.  Thurber,  ii.  210;  iii.  408. 
V.  Thurston,  iii.  407. 
Flanagan  v.  Philadelphia,  iii.  415. 
Flanders  v.  Lanipliear,  ii.  66,  67,  112. 
Fleetbush  v.  Avenue,  iii.  229. 
Fleetwood's  &  Aston 's  cases,  ii.  202. 
Fleming  v.  Gooding,  i.  558. 
V.  Griswold,  iii.  166. 
V.  Hale,  ii.  472. 
V.  Parry,  ii.  190. 
Fletcher  v.  Ashburner,  i.  31,  166. 
V.  Carey,  ii.  158,  244. 
V.  Chase,  ii.  175,  195,  216,  217 
V.  Coleman,  iii.  260. 
V.  Holmes,  iii.  74. 
V.  Mansur,  iii.  247,  264,  282. 
V.  McFarlane,  i.  504,  558. 
V.  Peck,  iii.  186,  191,  193. 
V.  Phelps,  iii.  416. 
V.  State  Bank,  i.  389  ;  iii.  461 
Flint  V.  Sheldon,  ii.  44,  48,  50. 

V.  Steadman,  ii.  604. 
Flintham's  Appeal,  ii.  721. 
Flood  V.  Flood,  i.  619. 
Flora  V.  Corbeau,  ii.  325. 
Florence  v.  Hopkins,  i.  681. 
Florentine  v.  Barton,  iii.  211. 
Floyd  V.  Floyd,  i.  610. 

V.  Mintsey,  iii.  142. 
V.  iM osier,  i.  385,  397,  423. 
Floyer  v.  Lavington,  ii.  49. 
Flynn  v.  Trask,  i.  507. 


Flvnt  V.  Arnold,  iii.  319,  324,  326,  328, 

339. 
Fogarty  v.  Finlay,  iii.  326. 

V.  Sawyer,  ii.  72,  104. 
Fogg  V.  Clark,  iii.  528. 

V.  Fogg,  i.  375,  426. 
Foley  V.  Cowgill,  iii.  299. 
V.  Howard,  iii.  297. 
V.  Wyeth,  ii.  360. 
Folger  V.  Mitchell,  i.  085. 
Folk  V.  Varn,  iii.  296,  298,  378. 
Follansbee  v.  Kilbreth.  ii.  524. 
Folly  V.  Vantiivl,  iii.  285. 
Folsom  V.  Carle,  i.  319,  359,  388, 400, 425. 
Folts  V.  Huntley,  i.  528. 
Fonda  v.  Borst,  ii.  307  ;  iii.  485. 
V.  Jones,  ii.  91. 

V.  Sage,  ii.  14,  16 ;  iii.  126,  285, 
292,  293,  307. 
Fonnereau  v.  Fonnerean,  ii.  689. 
Fontain  v.  Ravenel,  iii.  516,  521. 
Foot  V.  Dickinson,  i.  153. 

v.  New  Haven  &  Northampton  Co., 
i.  631,  633,  637,  63  ). 
Foote  V.  Burnet,  iii.  448,  451,  460. 

V.  Calvin,  i.  135,  575  ;  ii.  484,  491: 

iii.  392. 
V.  Cincinnati,  i.  528. 
Forbes  v.  Hall,  iii.  197. 

V.  Moffat,  ii.  195,  517. 
V.  Shattuck,  i.  133. 
V.  Smiley,  i.  596. 
V.  Smith,  i.  166. 
Forbush  ;■.  Goodwin,  ii.  101,  118. 

V.  Lombard,  iii.  388. 
Ford  V.  Cobb,  i.  28. 

V.  Erskine,  i.  209,  277. 

V.  Flint,  i.  93  ;  ii.  603;  iii.  93,  294, 

438. 
V.  Ford,  iii.  536. 
V.  James,  iii.  287,  293. 
V.  Olden,  ii.  63. 
V.  Philpot,  ii.  229. 
V.  Walsworth,  iii.  469,  470. 
V.  Whitlock,  i.  634  ;  iii.  52. 
V.  Wilson,  iii.  139,  150,  164. 
Foreman  i\  Foreman,  i.  31. 
Forrest  v.  Forrest,  i.  310. 

V.  Trammed,  i.  235. 
Forshaw  v.  Welsley,  ii.  463. 
Forster  v.  Hale,  ii.  503,  504. 
Forsythe  r.  Ballance,  iii.  194. 

V.  Price,  i.  136. 
Fort  17.  Burch,  ii.  116,  149. 
Fort  Plain  Bridge  v.  Smith,  ii.  297. 
Forth  V.  Chapman,  ii.  706,  708,  711,  726. 

V.  Norfolk,  ii.  1G4. 
Fortier  v.  Ballance,  i.  570. 
Forward  ('.  Deetz,  i.  657. 
Foscue  V.  Foscue,  ii.  492. 
Fosdick  V.  Harr,  ii.  116,  145. 

V.  Gooding,  i.  280. 
Fosgate  v.  Herkimer  Co.,  iii.  144,  158, 

162. 
Foss  V.  Crisp,  i.  182 ;  iii.  428. 


]h 


TABLE   OP    CASES   CITED. 


Foss  V.  Strachn,  i.  388,  415. 
Foster  v.  Abbot,  i.  683. 

V.  Beanlsley  Co  ,  iii.  292. 

V.  Browning,  i.  634  ;  ii.  303. 

V.  Denni.son,  ii.  442,  449. 

V.  Dvvinel,  i.  204,  236. 

I'.  Equitable  Ins.  Co.,  ii.  233. 

V.  Gordon,  i.  236. 

V.  Hilliard,  i.  125 ;  ii.  214. 

V.  Joice,  i.  83. 

V.  Mansfield,  iii.  288,  300,  301, 

309. 
V.  Mapes,  iii.  312. 
V.  Marshall,  i.  126,  180. 
V.  Morris,  i.  561. 
V.  Perkins,  ii.  100. 
V.  Peyser,  i.  544. 
V.  Reynolds,  ii.  151. 
V.  f{oT)inson,  i.  137. 
V.  Trustees,  ii.  91. 
Foster's  Appeal,  i  670. 
Foulke  V.  Stockdale,  iii.  161. 
Foust  V.  Moorman,  i.  681. 
Fowle  V.  Merrill,  ii.  72. 
Fowler  v.  Bott,  i.  505,  535. 
V.  Bush,  ii.  186. 
V.  Byers,  ii.  262. 
V.  Depau,  ii.  704. 
V.  Poling,  iii.  452,  453,  457,  469, 

477,  478. 
V.  Shearer,  i.  246,  248,  335 ;  iii. 

254,  277. 
V.  Thayer,  i.  644  ;  iii.  134. 
Fowley  r.  Palmer,  ii.  230,  233,  234. 
Fox  V.  Currey,  i.  517. 
V.  Fletcher,  i.  672. 
V   Harding,  ii.  163. 
r.  Phelps,' iii.  527,  529,530. 
I'.  Southack,  i.  74. 
V.  Union  Sugar  Co.,  iii.  430. 
Foxcroft  V.  Barnes,  i.  683  ;  iii.  331. 
Fov  V.  Foy,  ii.  501. 
Frail  v.  Ellis,  ii.  88. 
Francestovvn  v.  Deering,  ii.  474,  478. 
Francis  v.  Garrard,  i.  300. 
V.  Porter,  ii.  260. 
Franciscus  v.  Reigart,  ii.  275,  409,  448. 
Frank  )•.  Maguire,  i.  505. 
Franklin  r.  Carter,  i.  526,  561. 

V.  Coffee,  i.  302,  363,  427. 
V.  Borland,  iii.  93,  138. 
V.  McEntyre,  ii.  477. 
t'.  Merida,  i.  566,  567. 
V.  Osgood,  ii.  80, 661, 662, 663. 
v.  Palmer,  i.  567,  568. 
V.  Talmadge,  iii.  265. 
Frankum  r.  Falmouth,  ii.  350. 
Frazee  v.  Inslee,  ii.  196. 
Frazer,  Goods  of,  iii.  536. 
Frazier  r.  Brown,  ii.  357. 
Frederick  v.  (iray,  i.  658. 
Freeland  v.  Freeland,  iii.  337. 
Freeley  v.  Tupper,  ii.  164. 
Freeman  v.  Auld.  ii.  176. 

V.  Baldwin,  ii.  54. 


Freeman  v.  Cooke,  ii.  527  ;  iii.  82. 
V.  Foster,  iii.  476. 
V.  Freeman,  iii.  236. 
V.  Head  ley,  i.  590. 
V.  McGaw,  ii.  117,  163. 
V.  Parsley,  ii.  656. 
V.  Paul,  i".  230. 
V.  Pope,  iii.  336. 
V.  Schroeder,  ii.  113. 
Freer  v.  Stotenluir,  i.  4o7. 
French  v.  Braintree  Mg.  Co.,  ii.  371. 
V.  Carliart,  ii.  316. 
V.  Crosby,  i.  270. 
V.  Freeman,  i.  19. 
V.  French,  ii.  445 ;  iii.  275. 
V.  Fuller,  i.  589,  604,  605,  608. 
V.  Marstin,  ii.  322,  334,  335. 
V.  Mehan,  i.  673. 
V.  Peters,  i.  246,  249. 
V.  Pratt,  i.  292. 

V.  Rollins,  i.  120,  182 ;  iii.  156. 
V.  Spencer,  iii.  104. 
V.  Sturdivant,  ii.  44. 
Friedley  v.  Hamilton,  ii.  61,  149. 
Friedman  v.  Goodwin,  iii.  188,  192. 
Frink  v.  Bellis,  iii.  459. 
V.  Darst,  iii.  105. 
V.  Green,  iii.  373. 
V.  Murphy,  ii.  241. 
Frisbie  v.  Whitney,  iii.  197,  201. 
Frische  v.  Cramer,  ii.  102. 
Frissel  v.  Rozier,  i.  333. 
Frizzle  v.  Veach,  iii.  20,  332. 
Frogmorton  v.  Wliarrey,  i.  107. 
Frontin  v.  Sniall,  iii.  277. 
Frost  V.  Beeckman.ii.  144;  iii.  302,  305, 
309,  320. 
V.  Cloutman,  i.  111. 
V.  Deering,  i.  247  ;  iii.  257,  280. 
r.  Earnest,  i.  528. 
V.  Peacock,  i.  227. 
V.  Raymond,  iii.  484. 
V.  Spaulding,  iii.  403,   409,   424, 
425. 
Frothingham  v.  McKusick,  ii.  100,  134. 
Fry  V.  Jones,  i.  572,  575. 

V.  Miller,  i.  10. 
Fryatt  v.  Sullivan  Co.,  i.  9. 
Frye  v.  Bank  of  Illinois,  ii.  153,  154, 

155,  165,  187. 
Fryett  v.  .Jeffreys,  i.  483. 
Fuhr  V.  Dean,  i.  023,  634. 
FuUani  v.  Stearns,  i.  26. 
Fuller,  ex  parte,  iii.  530,  542. 
V.  Arms,  ii.  2. 
V.  Bradley,  i.  682. 
V.  Chaniier,  ii.  599. 
I'.  Fuller,  i.  131  ;  ii.  668. 
V.  Pratt,  ii.  56. 
V.  Rul)y,  i.  529,  533,  534. 
V.  Russell,  ii.  260. 
r.  Swett,  i.  526,  559,  595. 
V.  Taber,  i.  27. 
V.  Wadsworth,  ii.  110. 
V.  Wason,  i.  130,  209. 


TABLE   OP    CASES    CITED. 


liii 


Fullerton  i>.  McCurdy,  ii.  58. 
Fulton  V.  Stuart,  i.  4'J8. 
Fuhvood  c.  Graham,  iii.  405. 
P'ulwood's  case,  iii.  348. 
Fuuk  V.  Creswell,   iii.    361,    448,  460, 
463,  473,  474,  477,  478,  4'JO, 
4y5,  496. 
V.  Kiiicaid,  i.  517. 
V.  McReynolds,  ii.  124,  217. 
V.  Voneida,    iii.    463,    486,   488, 
490,  495,  496. 
Funk's  Lessee  v.  Kiiicaid,  i.  558. 
Furbush  v.  Goodwin,  ii.  100,  101,  117, 

129,  134. 
Furlong  v.  Leary,  i.  598. 
Furness  v.  Fox,  ii.  579. 
Fusselman  v.  Worthington,  i.  565,  570, 

587.     ■ 
Fyffe  V.  Beers,  i.  424. 


G. 


Gadberry  v.  Sheppard,  ii.  7,  8. 
GafEeld  v.  Hapgood,  i.  2S. 
Gage  V.  Brewster,  ii.  162, 173,  249,  252, 
254 ;  iii.  489. 
V.  Gage,  iii.  19. 
V.  Pitits,  ii.  340. 
V.  Smith,  iii.  165. 
V.  Ward,  i.  218,  222. 
Gaines  v.  Catron,  i.  669. 
Gainsfortli  u.  Griffith,  iii.  487. 
Galbraith  v.  Gedge,  i.  667. 
Galbreath  v.  Doe,  iii.  331. 
V.  Gray,  i.  187. 
Gale  V.  Coburn,  ii.  417,  438,  441,  453  ; 
iii.  373. 
V.  Edwards,  i.  518. 
V.  Nixon,  i.  486 ;  ii.  281. 
V.  Ward,  i.  25. 
Galland  v.  Jackm;in,  iii.  246,  317,  369. 
Gallatian  v.  Cunningham,  iii.  310. 
Gallego  V.  Atty.-Gen.,  iii.  516,  518. 
Galliers  u.  Moss,  ii.  140,  408. 
Gallipot  V.  Manlove,  iii.  192. 
Galloway  v.  Finley,  iii.  92,  200. 
V.  Ogle,  i.  560. 
)'.  Wilder,  iii.  442. 
Galpin  v.  Abbott,  iii.  319. 

V.  Paige,  iii.  220. 
'Gait  V.  Galloway,  iii.  200. 
Galveston  v.  Menard,  iii.  418. 
Galveston  K.  R.  v.  Cowdrey,  ii.  43, 157, 

240 ;  iii.  106. 
Gamble  v.  McClure,  iii.  484. 
Games  v.  Stiles,  iii.  224,  205. 
Gammon  v.  Freeman,  i.  220,  238. 
Gamon  v.  Vernon,  i.  502. 
Gangwere's  Appeal,  1.  426. 
E.stale,  i.  321. 
Gann  v.  Chester,  ii.  88,  92. 
Gardiner  ;;.  Dering,  i.  130. 
V.  Miles,  i.  255. 


Gardiner  Mg.  Co.  v.  Heald,  i.  13,  685. 
Gardner  t:  Astor,  ii.  193. 
V.  Finley,  i.  23. 
V.  Gardner,  i.  449;  ii.  492,  516, 

528  ;  iii.  2b0. 
V.  Gooch,  i.  58;  iii.  153. 
V.  Greene,  i.   195 ;   iii.  97,  98, 

109. 
V.  Guild,  ii.  542. 
V.  Heartt,  ii.  135. 
V.  Kettletas,  i.  444,  532. 
V.  Ogden,  ii.  483,  525. 
V.  Sheldon,  ii.  710. 
Garfield  v.  Hatniaker,  ii.  532. 

V.  Williams,  iii.  455,  456,  457, 
493. 
Garland  v.  Crow,  i.  115,  300. 
Garnans  ik  Knight,  iii.  290. 
Garner  v.  Hannah,  i.  484. 
Garnsey  v.  Munday,  ii.  468. 

V.  Rogers,  ii.  51,  210. 
Garrard  v.  Tuck,  i.  591. 
Garretson  v.  Cole,  iii.  199. 
Garrett  v.  Cheshire,  i.  343. 

V.  Jackson,  ii.  320.  323,  327 
V.  Moss,  iii.  255. 
V.  Scouten,  ii.  19. 
Garritt  v.  Sharp,  ii.  335,  372. 
Garson  v.  Green,  ii.  87,  90. 
Gartside  v.  Outley,  i.  509. 
Garvey  v.  Dobyns,  i.  525. 
Gary  v.  Easterbrook,  i.  395. 
Gaskill  V.  Sim,  ii.  206,  211. 

V.  Trainer,  i.  481. 
Gaskin  v.  Rogers,  iii.  508. 
Gass  y.  Gass,  iii.  507. 

V.  Wilhite,  iii.  518,  522. 
Gassett  v.  Grout,  iii.  333. 
Gates  V.  Adams,  ii.  203,  206,  219. 
V.  Caldwell,  iii.  485. 
V.  Green,  i.  534. 
Gateward's  case,  ii.  300. 
Gatling  o.  Rodman,  iii.  79. 
Gault  0.  McGrath,  ii.  187. 
Gaunt  V.  Wainman,  i.  240;  iii.  92. 
Gavit  V.  Ciiambers,  iii.  413. 
Gaw  y.  Hughes,  iii.  99. 
Gay,  ex  parte,  i.  466. 
Gayetty  v.  Betliune,  ii.  330, 333 ;  iii.  395. 
Gayfbrd  v.  Nicholls,  ii.  360. 
Gayle  v.  Price,  i.  238. 
Gaylord  v.  Scarrt',  iii.  226. 
V.  Dodge,  i.  187. 
Gear  v.  Barnum,  iii.  389. 
Gee  V.  Audley,  ii.  668,  673. 
V.  Gee,  ii.  474,  477,  478. 
V.  IMoore,  i.  346,  381,  407  ;  iii.  475. 
('.  Young,  i.  134. 
Geer  o.  Hiimblin,  i.  258,  259. 
Geiss  V.  Odenheimer,  iii.  282,  286. 
Gelzer  y.  Gelzer,  i.  322. 
Gen.  Ins.  Co.  v.  United  States  Ins.  Co., 

ii.  145,  146. 
Center  v.  Morrison,  iii.  276,  282. 
George  v.  Baker,  i.  459 ;  ii.  142,  245. 


Hv 


TABLE    OF    CASES    CITED. 


George  i'.  George,  iii.  504. 
V.  Kent,  ii.  207. 
V.  Morgan,  ii.  006. 
V.  Putney,  i.  556,  562,  563. 
V.  Wood,  ii.  207,  211,  223,  246, 
261 ;  iii.  316. 
George's  Creek  Co.  v.  Detmold,  i.  161. 
Gerbor  v.  Grabel,  ii.  305,  346. 
German  v.  Gabbakl,  ii.  480. 

V.  Macliin,  i.  656. 
German  Association  v.  SclioUer,  ii.  465 ; 
iii.  264. 
Insurance  Co.  v.  Grim,  iii.  330. 
Gernett  v.  Lynn,  iii.  148. 
Gerrard  v.  Cooke,  ii.  303,  338. 
Gerrisli  v.  Black,  ii.  223,  234. 
V.  Clough,  iii.  57. 
V.  jNlace,  ii.  176. 
Getman  v.  Getman,  ii.  477. 
Getzler  v.  Saroni,  i.  383,  408. 
Ghegan  v.  Young,  i.  504. 
Gibbes  v.  Holmes,  ii.  107. 
Gibbons  v.  Dillingham,  iii.  392. 
Gibbs  V.  Barnardistou,  ii.  626. 
V.  Estey,  i.  5. 
V.  Marsh,  ii.  511,  663. 
V.  Ross,  i.  498,  518. 
V.  Swift,  i.  654 ;  iii.  322. 
V.  Tliayer,  iii.  96. 
Gibert  v.  Peteler,  ii.   13,  303,  313 ;  iii. 

237,  328,  329. 
Giblin  V.  Jordan,  i.  366. 
Gibson  v.  Brockaway,  iii.  396. 

V.  Choteau,  iii.  105,  108,  484. 
V.  Crehore,  i.  125,  206,  227,  228, 
229,  230,  231,  294,  296,  297, 
298;  ii.  173,  174,  175,  178, 
195,  198,  200,  204,  212,  214, 
222,  226,  227,  234,  235,  236, 
517. 
V.  Durham,  ii.  324. 
V.  Eller,  i.  506 ;  ii.  35,  43. 
V.  Farley,  i.  518;  ii.  166;  iii.  6. 
V.  Foote,  i .  478. 
V.  Gibson,  i.  252,  318,  320. 
V.  McCormick,  ii.  198. 
V.  Montfort,  ii.  495. 
V.  Rogers,  li.  495. 
V.  Soper,  iii.  250. 
I'.  Taylor,  ii.  67. 
V.  Wells,  i.  160. 
V.  Zimmerman,  i.  332. 
Giddings  v.  Sears,  iii.  337. 
Gilbert  v.  Anthony,  iii.  241. 
V.  Bell,  iii.  207. 
V.  Bulkley,  iii.  307. 
V.  Dickerson,  i.  660. 
V.  Dvneley,  ii.  234. 
V.  N'  a.  Ins.  Co.,  iii.  299,  300, 

302. 
V.  Witty,  ii.  557. 
Gilbertson  v.  Richards,  ii.  70,  409. 
Gilchrist  v.  Patterson,  ii.  110. 
V.  Stevenson,  ii.  508. 
Gildart  v.  Gladstone,  iii.  190. 


Gile  V.  Stevens,  i.  17. 
Giles  V.  Baremore,  ii.  183. 
V.  Elsworth,  i.  561. 
V.  Pratt,  iii.  311. 

V.  Simontls,  i.  634,  638;  iii.  345, 
347. 
Gilhooly  i-.  Washington,  i.  538. 
Gill,  Goods  of,  iii.  537. 

V.  Fauntelroy,  i.  658;  iii.  319. 
V.  Logan,  ii.  203,  490. 
V.  Lyon.  ii.  179. 
V.  Middleton,  i.  491,  538,  544. 
V.  Pinnev,  ii.  48. 
Gillan  v.  Hutchinson,  ii.  380;  iii.  212. 
Gillespie  v.  Cunningham,  iii.  186. 
V.  Miller,  ii.  724,  725. 
V.  Somerville,  i.  205,  224. 
V.  Thomas,  i.  527. 
Gillet  V.  ]\Iaynard,  i.  605. 
Gillett  V.  Balcom,  i.  138. 
V.  Eaton,  ii.  108. 
Gilliam  v.  Moore,  i.  220. 
Gillis  V.  Brown,  i.  194. 

V.  Martin,  ii.  43,  53,  56,  60. 
Oilman  v.  Brown,  ii.  87,  91,  93. 
V.  Haven,  iii.  474. 
V.  Hidden,  ii.  253. 
V.  Moody,  ii  65,  260. 
V.  Morrill,  i.  653. 
V.  Redington,  ii.  531,  633. 
V.  Smith,  iii.  425. 
Gilmer  v.  Lime  Point,  iii.  213. 
Gihuore  i'.  Wilbai',  i.  665. 
Gilpin  V.  Hollingswortli,  i.  651 ;  iii.  18. 
Gilson  V.  Gilson,  ii.  43,  55,  143. 
Gimman  v.  Legge,  i.  526. 
Ginmiy  o.  Doane,  i.  429. 
Girard  L.  Ins.  Co.  v.  Chambers,  ii.  721. 
Gittings  V.  Moale,  iii.  135. 
Givan   v.  Doe,  ii.   106,    115,  116,  117, 

118;  iii.  313,  324,  36L 
Givens  v.  McCalmont,  i.  141;  ii.  134. 

169,  223,  224,  229. 
Glascock  V.  Robards,  i.  590. 
Glass  V.  Ellison,  ii.  140. 

V.  Hull)ert,  iii.  236,  383. 
Gleason  v.  Smith,  iii.  474,  475. 
Glenn  i:  Bank  of  U.  S..  i.  248. 

V.  Davis,  ii.  343. 
Glenorcliy  v.  Bosville,  ii.  489. 
Glidden  v.  Burnett,  i.  5,  17. 
V.  Blodgett,  ii.  553. 
V.  Strupler,  iii.  71,  80. 
Glisson  V.  Hill,  ii.  51. 
Globe  Ins.  Co.  v.  Lansing,  ii.  241. 
Gloucester  v.  Gailhey,  iii.  205. 
Glover  v.  Payii,  ii.  48,  -59. 
Glynn  v.  George,  i.  569. 
Godard  v.  S.  C.  Railroad,  i.  607,  610. 
Godbold  V.  Lambert,  iii.  316. 
Goddard  v.  Chase,  i.  24. 

V.  Sawver,  ii.  42. 125, 151,  152 
153. 
Goddard's  case,  iii.  282,  286. 
Godfrey  v.  Humphrey,  i.  85. 


TABLE    OF    CASES   CITED. 


Iv 


Godfrey  v.  Watson,  ii.  229,  234. 

Godwin  v.  Kilsha,  ii.  677. 

Goewey  v.  Urig,  iii.  151. 

Going  V.  Emery,  ii.  519 ;  iii.  515,  518. 

Goldman  v.  Clark,  i.  361,  414. 

Gombee  v.  Hackett,  i.  483. 

Gomez  v.  Tradesmen's  Bank,  ii.  503. 

Gooch  V.  Atkins,  i.  302. 

Good  V.  Coombs,  i.  655 ;  iii.  262. 

V.  Zercher,  iii.  214,  216. 
Goodall  V.  McLean,  iii.  525. 
Goodall's  case,  ii.  39. 
Goodburn  v.  Stevens,  i.  201,  300;  ii.  198. 
Goode  V.  Comfort,  ii.  81. 
Goodell  V.  Jackson,  i.  74. 
Goodenow  r.  Ewer,  ii.  104. 
Gooding  v.  Shea,  ii.  135. 
Goodlet  V.  Smithson,  iii.  193,  194,  195. 
Goodman  v.  Gore,  ii.  347. 

V.  Grierson,  ii.  49. 
V.  Han.  &  St.  Jo.  K.  II.,  i.  6,  29. 
V.  White,   ii.    106,   112,   174, 
240,  251. 
Goodrich  v.  Jones,  i.   17,   19 ;   iii.  391, 
393. 
r.  Lambert,  ii.  607. 
i\  Staples,  ii.  250. 
Goodridge  v.  Dustin,  iii.  87,  120. 
Goodright  v.  Cator,  i.  482 ;  ii.  638,  645. 
V.  Cordwent,  i.  606,  613. 
V.  Cornish,  ii.  668,  685,  719. 
V.  Davids,  ii.  19. 
V.  Dunham,  ii.  576. 
V.  Searle,  ii.  714. 
V.  Straphan,  iii.  248. 
V.  Wells,  ii.  516. 
Goodrum  v.  Goodrum,  i.  331. 
Goods  of  Dobson,  iii.  527. 
Goodsell  V.  Sullivan,  iii.  321. 
Goodson  V.  Beacliam,  iii.  109. 
Goodspeed  v.  Fuller,  iii.  369,  376. 
Goodtitle  v.  Bailev,  iii.  381. 

V.  Billington,  ii.  584,  609,  617. 
V.  Holdlast,  ii.  22. 
V.  Jones,  ii.  527. 
V.  Kibbe,  iii.  418. 
V.  Tombs,  i.  435,  659. 
V.  VVay,  i.  451. 
V.  Whitby,  ii.  579. 
V.  Wood,  ii.  714. 
Goodwin  v.  Clark,  ii.  622. 

V.  Gilbert,  i.  486  ;  ii.  49,  281 ; 

iii  312,  377. 
V.  Goodwin,  i.  195. 
V.  Richardson,  i.  666,  671 ;  ii. 
119,  143,  159,  182. 
Gordon  v.  Canal  Co.,  ii.  31. 
V.  George,  i.  500. 
V.  Graham,  ii.  153. 
V.  Haywood,  i.  334 ;  iii.  254. 
V.  Hobart,  ii.  182. 
V.  Lewis,  ii.  224,  227,  228,  234, 

235. 
V.  Siser,  iii.  129,  244. 
V.  Ware  Savings  Bank,  ii.  231. 


Gore  V.  Brazier,  i.  290 ;  iii.  469,  498. 
V.  Fitch,  ii.  336. 
V.  Gibson,  i.  456. 
V.  Gore,  ii.  716. 
V.  Jenuess,  ii.  135. 
V.  McBrayer,  ii.  381. 
Gorges  v.  Stanlield,  i.  129. 
Gorham  v.  Daniels,  i.  194  ;  ii.  448 ;  iii. 

372. 
Gorin  v.  Gordon,  ii.  640,  647,  648,  665. 
Goring  v.  Shreve,  ii.  163,  164. 
Goss  V.  Singleton,  ii.  507,  508 ;  iii.  163. 
Gossam  v.  Donaldson,  i.  646,  686. 
Gossett  V.  Kent,  iii.  264. 
Gossiu  u.  Brown,  ii.  218. 
Gothard  v.  Flynn,  ii.  85. 
Gott  V.  Gandy,  i.  490,  639,  545,  605. 

V.  Powell,  iii.  220. 
Gouchenour  v.  Mowry,  iii.  467. 
Gouhenant  v.  Cockrell,  i.  403. 
Gould  V.  Hudson  River  R.  R.,  ii.  368. 
V.  Lamb,  i.  83  ;  ii.  494. 
V.  Manstiekl,  iii.  504. 
V.  Newman,  ii.  112,  116,  168. 
V.  School  District,  i.  436. 
V.  Thompson,  i.   590,    591,   593, 

594. 
V.  Womack,  i.  322. 
Goundic  v.  Northampton   Water   Co., 

iii.  78,  79. 
Gourley  v.  Gilbert,  ii.  546. 

(,'.  Woodbury,  i.  678;  ii.  542. 
Gove  V.  Richardson,  iii.  89. 

V.  White,  iii.  74,  410,  420. 
Governor  v.   Wood  worth,  ii.  492;    iii. 

163. 
Govier  v.  Hancock,  i.  242. 
Gowen  v.  Pliila.  Exch.  Co.,  i.  630. 

V.  Shaw,  i.  661. 
Gowlett  V.  Hanforth,  ii.  64. 
Graff  V.  Fitch,  iii.  346. 
Graffius  ".  Tottenham,  iii.  164. 
Grafton  Bank  v.  Foster,  ii.  186. 
Graham  v.  Anderson,  iii.  326,  327. 
V.  Carter,  ii.  255. 
V.  Connersville  R.  R.,  i.  23. 
V.  Crockett,  i.  347. 
V.  Houghtaling,  ii.  553. 
V.  McCampbeli,  ii.  91,  92. 
V.  Newman,  ii   118,  121. 
V.  United  States,  i.  55. 
V.  Way,  i.  516,  523. 
Granberry  v.  Cranberry,  ii.  235. 
Grandin  v.  Carter,  i.  494,  518. 
Grand  Junction  Canal  v.  Sluigar,  ii.  356. 
Granger  v.  Brown,  i.  608,  611. 
V.  Swart,  iii.  56,  331. 
Grant  v.  Bissett,  ii.  143,  150. 

V.  Chase,  i.  120;  ii.  301,  345,  373. 

V.  Dodge,  i.  220. 

V.  Duane,  ii.  173. 

V.  Fowler,  iii.  136,  150,  164. 

V.  Grant,  iii.  531. 

V.  Thompson,  i.  455. 

V.  Whitwell,  ii.  279. 


Ivi 


TABLE   OF   CASES   CITED. 


Grantham  v.  Atkins,  iii.  196. 
V.  Hawlcy,  i.  lo6. 
Grapeugether  v.  Fejerrary,  ii.  87. 
Grattan  i:  Wicfgiiis,  ii.   104,  123,  124, 

185,  251,  252,  257. 
Gratz  V.  Beates,  iii.  424,  425,  426. 
V.  Ewalt,  iii.  41)0. 
V.  Gratz,  i.  685. 
Gravenor  v.  Hallum,  iii.  523. 
Graves  v.  Amoskeag  Co.,  iii.  390. 

V.  Bcrdan,  i.  505,  535,  646  j  ii. 

366. 
V.  Dudley,  iii.  293. 
V.  Graves,  ii.  44,  430,  432,  470, 
481,482,531;  iii.  319,  377, 
390. 
V.  Hampden  Ins.  Co.,  ii.  231, 

232,  234. 
V.  Porter,  i.  494,  499. 
V.  Wells,  i.  570. 
Gray  v.  Baldwin,  ii.  136. 

V.  Bartlett,  ii.  367 ;  iii.  78,  79. 
V.  Beny,  iii.  88. 
V.  Blanchard,  ii.  13,  16,  17,  19. 
V.  Bompas,  i.  610. 
V.  Bridgeforth,  ii.  706. 
V.  Brignordello,  ii.  31. 
V.  Deluee,  iii.  430. 
V.  Givens,  i.  657. 
V.  Hornbeck,  iii.  382. 
V.  Jenks,  ii.  127. 
V.  Johnson,  i.  555,  558. 
V.  Lynch,  ii.  652. 
Graydon  v.  Church,  ii.  40,  256. 
Great  Falls  Co.  v.  Worster,  i.  655,  6.58 ; 

ii.  101 ;  iii.  92,  262,  426,  467. 
Greatrex  v.  Hay  ward,  ii.  358. 
Greber  v.  Kleckner,  i.  466. 
Green  v.  Armstrong,  i.  4,  10,  13;  iii. 
343,  345,  346. 
V.  Butler,  ii.  57,  62,  63. 
V.  Chelsea,  i.  59 ;    ii.   330,  369 ; 

iii.  419,  425. 
V.  Clark,  ii.  478 ;  iU.  99. 
V.  Crockett,  ii.  92. 
V.  Cross,  ii.  125,  246. 
V.  Demos,  ii.  92. 
V.  Dennis,  iii.  515,  525. 
V.  Dixon,  ii.  246. 
V.  Drummoud,  ii.  477,  480. 
V.  Fowler,  ii.  89. 
V.  Green,  i.  2(n,  204,  323,  §27. 
V.  Hart,  ii.  97,  99,  107,  122,  186. 
V.  Hunt,  ii.  141. 
V.  Kemp,  ii.  176. 
V.  Liter,  i.  55,  58,  59,  175 ;   iii. 

132,  152,  192. 
i;.  Marks,  i.  395,  409,  421.       . 
V.  Massie,  iii.  20. 
V.  Putnam,  i.  17,  19-5,  251,  302, 
678;  ii.  369;    iii.  205,  302, 
390. 
V.  Pettingill,  ii.  16,  243. 
V.  Ramage,  ii.  206. 
V.  Tanner,  ii.  150. 


Green  v.  Tennant,  i.  282,  290. 

V.  Tiioraas,  iii.  364,  368,  371,  372. 
V.  Winter,  ii.  523,  524. 
V.  Yarnall,  iii.  294. 
Green's  Estate,  iii.  190. 
Greenaway  v.  Adams,  i.  473. 
Greenby  v.  Wilcocks,  iii.  457. 
Greene  v.  Cole,  i.  156. 

V.  Creighton,  ii.  309. 
V.  Greene,  i.  257. 
V.  Munson,  i.  565,  570,  571;  iii. 
162. 
Greenhouse,  ex  puiie,  ii.  513. 
Greeuleaf  v.  Birth,  iii.  433. 

V.  Francis,  ii.  353,  366. 
Greenough  i'.  Turner,  i.  412. 
V.  Welles,  ii.  663. 
Greenslade  v.  Tapscott,  i.  480. 
Greenup  v.  Sewell,  i.  678. 
Greenwood  u.  Coleman,  iii.  252. 
V.  Curtis,  i.  213. 
V.  Maddox,  i.  316,  352. 
V.  Murdock,  iii.  396. 
V.  Roberts,  ii.  729. 
V.  Rothwell,  ii.  603. 
V.  Tyler,  iii.  439. 
Greenwood's  case,  iii.  512. 
Greer  v.  Blanchard,  iii.  213. 
Gregg  V.  Blackmore,  i.  686  ;  iii.  65,  162. 
V.  Bostwick,  i.  354,  367 
V.  Tesson,  iii.  148. 
V.  Wells,  iii.  79. 
Gregory  v.  Henderson,  ii.  467. 
V.  Perkins,  ii.  51,  52. 
V.  Pierce,  iii.  257. 
V.  Savage,  ii.  98,  117,  121,  193. 
V.  Walker,  iii.  296. 
Greider's  Appeal,  i.  547. 
Gresham  v.  Webb,  iii.  331. 
Greton  v.  Smith,  i.  603. 
Grey  v.  Mannock,  i.  122. 
Gridley  v.  Watson,  iii.  336. 
V.  Wynant,  iii.  259. 
Griffin  v.  Bixby,  i.  12. 

V.  Fairbrother,  iii.  448,  451,  452, 

454,  457,  470. 
V.  Graham,  iii.  518,  522. 
V.  Reece,  i.  256,  268. 
V.  Sheffield,  i.  618;  iii.  253. 
V.  Sutherland,  i.  350,  426. 
Griffith  V.  Deerlelt,  iii.  193. 
V.  Griffith,  i.  236. 
V.  Hodges,  i.  551. 
V.  Pownall,  ii.  588,  676. 
Griffithes  v.  Penson,  iii.  401. 
Griggs  V.  Smith,  i.  220,  234. 
Griggsby  ;••  Hair,  ii.  92. 
Grignon  l\  Astor,  iii.  191,  192. 
Grim  v.  Dyar,  iii.  527. 
Grimes  v.  Kimball,  ii.  188. 
V.  Ragland,  iii.  156. 
Grimman  v.  Legge,  i.  549,  550,  595. 
Grist  V.  Hodges,  iii.  468. 
Griswold  v.  Bigelow,  iii.  210. 
V.  Butler,  iii.  249. 


TABLE   OF   CASES   CITED. 


Ivii 


Griswold  v.  Fowler,  ii.  240. 
V.  Greer,  ii.  707. 
V.  Johnson,  i.  Gd5. 
V.  Messin<>er,  ii.  394 ;  iii.  377. 
Groesbeck  v.  Seeley,  ii.  632 ;  iii.  226, 

238,  314. 
Groff  V.  Levan,  i.  138. 
Groft  V.  Weakland,  iii.  137. 
Grose  v.  West,  iii.  422. 
Grosvenor  v.  Atlantic  Ins.  Co.,  ii.  233. 
Groton  r.  Boxborough,  ii.  100,  162,  167. 
Grout  V.  Townsend,  i.  120, 126, 162, 172; 

ii.  555 ;  iii.  260,  377,  378. 
Grover  v.  Flye,  ii.  159,  162. 

V.  Thacher,  ii.  117,  195. 
Grubb  V.  Bayard,  i.  18 ;  ii.  377. 

V.  Guildford,  iii.  395. 
Grube  v.  Wells,  iii.  129,  141,  158,  161. 
Grumble  v.  Jones,  ii.  710. 
Grundin  v.  Carter,  i.  502,  516. 
Grynies  a.  Boweren,  i.  30. 
Guard  o.  Bradley,  iii.  290. 
Gubbins  y.  Creed,  ii.  65. 
Guerrant  v.  Anderson,  iii.  323. 
Guest  V.  Opdyke,  i.  573. 
Guild  V.  Richard,  ii.  13,  17,  19. 

I'.  Rogers,  ii.  278,  281. 
Guiod  V.  Guiod,  i.  381. 
Guion  V.  Anderson,  i.  126, 174, 179, 180, 
181. 
^^  Knapp,  ii.  130,  203,  211. 
Gulliver  i'.  Wickett,  ii.  688,  689. 
Gully  V.  Ray,  i.  205,  219,  224,  239. 
Gunn  V.  Barrow,  ii.  527. 
V.  Barry,  i.  344. 

V.  Gunnison  v.  Twichell,  i.  301, 
376,  388,  415. 
Guphill  V.  Isbell,  ii.  526. 
Gurney  v.  Guniey,  iii.  508. 
Guthrie  v.  Gardner,  ii.  475. 
V.  Jones,  i.  28. 
V.  Kahle,  ii.  102,  223. 
V.  Owen,  i.  302. 
Guy  V.  Brown,  ii.  314. 

V.  Ide,  ii.  104. 
Gwathnieys  v.  Ragland,  ii.  123,  124. 
Gwinnell  v.  Eames,  i.  540. 
Gwyn  V.  Wellborn,  ii.  106. 
Gwyun  v.  Jones,  i.  621. 
Gwynne  v.  City  of  Cincinnati,  i.  270. 


H. 


Habergliam  v.  Vincent,  ii.  655;  iii.  537. 
Hackett  v.  Reynolds,  ii.  85. 
Hadfield-s  case,  iii   512. 
Iladley  v.  Chapin,  ii.  129. 

IK  Houghton,  ii.  259. 

V.  Pickett,  ii.  91. 

V.  Taylor,  i.  5.39,  542. 
Hadlock  v.  Bulflnch,  ii.  187. 
V.  Hadlock,  iii.  287. 
Hafflej'  V.  Maier,  ii.  255. 
Haliick  v.  Stober,  i.  29. 


ITafner  v.  Irwin,  iii.  439. 
Ilagan  v.  Campbell,  iii.  190. 
Ilagar  v.  Brainard,  ii.  134. 

V.  Wiswall,  i.  683. 
Hager  v.  Nixon,  i.  390. 
Hagthorp  v.  Hook,  ii.  224,228,  229  ;  iii. 

326. 
Hague  V.  Porter,  i.  436. 
Haigh,cr  ;)fM-^e,  ii.  83. 
Haight  u.  Keokuk,  iii.  413. 
Haines  v.  Beach,  ii.  252. 
V.  Gardner,  i.  237. 
V.  Thompson,  ii.  48,  59,  61. 
Halt  V.  Houle,  i.  419. 
Halcombe  v.  Ray,  ii.  52. 
Haldane  l\  Johnson,  i.  483. 
Haldeman  v.  Haldeman,  i.  113 ;  ii.  603, 

605. 
Hale  V.  Glidden,  iii.  149. 

V.  Heaslip,  i.  348. 

V.  Henrie,  ii.  84. 

V.  Jewell,  ii.  54. 

V.  McLeod,  iii.  52. 

V.  Munn,  i.  237. 

V.  New  Orleans,  iii.  474. 

V.  Olroyd,  ii.  340,  372. 

V.  Plummer,  i.  201,  202. 

V.  Rider,  ii.  245. 

t'.  Silloway,  iii.  142. 
Haley  v.  Bennett,  ii.  86. 
Hall  V.  Ashby,  iii.  332,  359. 

V.  Ball,  i.  447. 

V.  Burgess,  526,  600. 

V.  Cazenove,  i.  440. 

V.  Chaffee,  ii.  700,  706,  708,  475. 

V.  Chaffers,  i.  633. 

V.  Gushing,  ii.  511. 

V.  Cushman,  ii.  215. 

V.  Davis,  iii.  404,  405. 

V.  Dench,  ii.  161. 

V.  Dewev,  i.  565. 

V.  Hall,  i.  323  ;  ii.  463. 

V.  Harris,  iii.  305. 

V.  Jones,  ii.  87. 

V.  Leonard,  iii.  267. 

V.  Lund,  iii.  384. 

V.  Lyon,  ii.  252. 

V-  Mayhew,  iii.  402,  491. 

V.  McCoughey,  ii.  339. 

V.  McDufl;  ii.  83,  84  ;  iii.  307. 

V.  Nash,  ii.  260. 

V.  Nelson,  ii.  250,  255. 

V.  Nute,  ii.  549,  550. 

V.  Orvis,  iii.  100. 

V.  Patterson,  iii.  327. 

V.  Plaine,  iii.  449. 

V.  Priest,  ii.  547,  557,  688,690,  696, 
706,  709,  711,  725. 

V.  Robinson,  ii.  713,  720. 

V.  Savage,  i.  247. 

V.  Savill,  ii.  103. 

V.  Sayre,  i.  330. 

V.  Stevens,  i.  59;  iii.  142,  162. 

V.  Surtees,  ii.  170,  184. 

V.  Swift,  ii.  327,  373. 


Iviii 


TABLE   OF    CASES   CITED. 


Hall  V.  Tufts,  i  80. 
V.  Towne,  ii.  73. 
V.  Wiulsworth,  i.  602,  605,  606. 
V.  West.  Transp.  Co.,  i.  593. 
V.  Young,  ii.  41i,  481,  602. 
Hall's  Estate,  in  re,  i.  207. 
Hallenbeck  v.  De  Witt,  iii.  281. 
Hallett  V.  Collins,  ii.  515  ;  iii.  312. 

V.  Wylie,  i.  450,  535. 
Hallifax  v.  Higgins,  ii.  63. 
Haliigan  u.  Wade,  i.  531,  533. 
Hallock  V.  Smith,  ii.  92. 
Halloran  v.  Whitcomb,  iii.  74. 
HaUey  v.  McCorinick,  iii.  411. 

V.  Keed,  ii.  208,  217. 
Ham  V.  Ham,  iii.  72,  92,  112. 

i\  Kendall,  i.  4. 
Hamblin  v.  Bank  of  Cumberland,  i.  235. 
Hamerton  v.  Stead,  i.  602. 
Hamilton  v.  Adams,  iii.  230. 
V.  Crosby,  iii.  219. 
V.  Cutts.'iii.  474,  478. 
V.  Doolittle,  iii.  359. 
V.  Elliott,  ii.  11,  17. 
V.  Fowlkes,  ii.  88. 
V.  Lubukee,  ii.  70,  74. 
V.  Nutt,  iii.  328. 
V.  Porter,  iii.  530. 
V.  Quimby,  ii.  187. 
V.  White,  ii.  338,  340,  341. 
V.  Wilson,  iii.  449. 
V.  Wright,  i.  454, 488 ;  iii.  147, 
156. 
Hamit  v.  Lawrence,  i.  558. 
Hamlin  ;;.  Hamlin,  i.  205,  235. 
Hammington  v.  lludyard,  ii.  713,  727. 
Hammond  v.  Alexander,  iii.  239. 
V.  Hall,  ii.  353. 
V.  Inloes,  iii.  48. 
V.  Lewis,  ii.  116. 
V.  MoLachlan,  iii.  420,  422. 
v.  Ridgely,  iii.  410. 
Hampton  v.  Hodges,  ii.  136. 

V.  Levy,  ii.  149. 
Hanbury  i'.  Hussey,  i.  677. 
Hanchet  v.  Whitney,  i.  610. 
Hancock  v.  Beverly,  iii.  325. 
V.  Butler,  ii.  (506. 
V.  Carlton,  ii.  21,  36,  194. 
V.  Day,  i.  62. 
V.  IMorgan,  i.  363. 
V.  Wentworth,  ii.  343. 
Handberry  i\  Doolittle,  iii.  510. 
Handley  v.  Howe,  ii.  147. 
Handy  v.  Commercial  Bank,  ii.  151. 
Hanford  v.  McNair,  iii.  280. 
Hanger  v.  Abbott,  iii.  179. 
Hanna  v.  Eenfro,  iii.  137,  151,  332. 
Hannah  v.  Carrington,  ii.  69,  77,  80, 97, 
219. 
V.  Henderson,  iii.  474. 
V.  Swarner,  iii.  297. 
Hannan  i-.  Osborn,  i.  663. 
Hannay  v.  Thompson,  ii.  51. 
Hannen  v.  Ewalt,  i.  504. 


Hannura  v.  West  Chester,  iii.  384. 
Hanrahan  v.  O'Reilly,  i.  5;   iii.  70,  74, 

78. 
Hansard  v.  Hardy,  ii.  1»3. 
Hanson  v.  Campbell,  iii.  421,  422. 

V.  Willard,  i.  684. 
Hapgood  V.  Blood,  ii.  101. 

V.  Brown,  iii.  388. 
Harbeck  v.  Vanderbilt,  ii.  188. 
Harbert's  case,  ii.  202. 
Harberton  v.  Bennett,  ii.  218. 
Harbridge  v.  Warwick,  ii.  344. 
Hardenburg  v.  Larkin,  iii.  258. 
Harder  v.  Harder,  i.  142 ;  ii.  481. 
Hard! man  v.  Donner,  i.  344. 
Harding  v.  Hale,  iii.  72. 

V.  Springer,  i.  332,  672. 
V.  Strong,  iii.  385. 
V.  Tibbils,  iii.  225. 
V.  Townshend,  ii.  233. 
V.  Wilson,  iii.  485. 
Hardisty  v.  Glenn,  i.  559  ;  iii.  153. 
Hardy,  ex  parte,  ii.  83. 
Hare  v.  Celey,  i.  572. 

V.  Groves,  i.  536. 
Hargrave  v   King,  i.  473,  479. 
Harker  v.  Birbeck,  i.  17. 
Harkins  v.  Pope,  i.  603. 
Harlan  v.  Lehigh  Coal  Co.,i.  488;  ii.  378. 
V.  Seaton,  iii  325. 
V.  Stout,  i.  683. 
Harle  v.  McCoy,  iii.  90. 
Harley  v.  King,  i.  503,  504. 

V.  Walton,  i.  666 
Harlow  v.  Cowdrey,  ii.  458. 
V.  Stinson,  ii.  367. 
V.  Thomas,  iii.  463,  474,  495. 
Harmer  v.  Morris,  iii.  425. 
Harman  v.  Gartnian,  i.  660. 
Harney  ?'.  Morton,  iii.  101. 
Harpending  v.  Dutcli  Church,  i.  657. 
Harper  v.  Archer,  iii.  16. 

V.  Barsh,  ii.  53;  iii.  319,  320. 
V.  Ely,  ii.  178. 
V.  Hampton,  iii.  277,  278. 
V.  Little,  iii.  278. 
V.  Perry,  iii.  317,  375. 
V.  Phelps,  ii.  476,  506. 
V.  Tapley,  iii.  320. 
Harper's  Appeal,  ii.  42,  228. 
Harramond  v.  McGlaughon,  iii.  410. 
Harriman  v.  Brown,  iii.  426. 

I'.  Gray,  i.  247,  250,  251 ;  iii. 

112. 
V.  Southara,  iii.  265. 
Harrington  v.  Worcester,  iii.  223,  227. 
Harris  v.  Barnes,  ii.  719. 
V.  Barnett,  ii.  471. 
V.  Burton,  iii.  253,  315. 
V.  Carson,  i-  134. 
V.  Colquitt,  i.  360. 
V.  Elliott,  iii.  387,  394,  429. 
V.  Fly,  iii.  328. 
V.  Frink,  i.  9,  134,  573,  590. 
V.  Gillingham,  i.  632,  634. 


TABLE   OF   CASES   CITED. 


lix 


Harris  v.  Havnes,  i.  26. 

V.  McElroy,  ii.  526,  594. 
V.  McKi.ssack,  iii.  198. 
V.  Mills,  ii.  122,  183,  185. 
V.  Norton,  ii.  145. 
V.  Rucker,  ii.  510. 
V.  Rydiiig,  i.  17,  18;  ii.  362,  364. 
V.  Thoiuiis,  i.  160. 
Harrison  v.  Blackburn,  i.  443. 
V.  Eldridge,  ii.  248. 
V.  Forth,  iii.  339. 
V.  Gooil,  ii.  309. 
V.  Harrison,  ii.  506,  531,  633. 
V.  Lemon,  ii.  55. 
V.  Middleton,  i.  587,  589. 
V.  Owen,  ii.  128. 
V.  Phillips  Academy,  iii.  286, 

293. 
V.  Pool,  iii.  142. 
V.  Trustees,  &c.,  ii.  44,  54,  61, 

62 ;  iii.  334. 
V.  Wood,  i.  303. 
V.  Wyse,  ii.  236. 
Harrold  v.  Simons,  iii.  319. 
Harsha  v.  Keed,  ii.  -^86  ;  iii.  236. 
Hart  V.  Goldsmith,  ii.  268. 
V.  Hill,  ii.  366. 
V.  Israel,  i.  5U9. 
V.  McCollum,  i.  269. 
V.  Vose,  ii.  322 ;  iii.  52. 
V.  Windsor,  i.  487,  488,  544,  545. 
Hartley  v.  Frosh,  iii.  315. 

V.  The  State,  iii.  14. 
Hartley  &  Minor's  Appeal,  ii.  664. 
Hartly  v.  O'Flaherty,  ii.  203,  219. 

V.  Tatham,  ii.  130,  173,  178. 
Hartman  v.  Kendal,  iii.  251. 
Harton  v.  Harton.  ii.  458,  467,  468. 
Hartop's  case,  ii.  434,  435. 
Hartshorn  v.  Day,  iii.  281. 

V.  Hubbard,  ii.  Ill,  112. 
Hartshorne  v.  Hartshorne,  i.  207,   277, 
296. 
V.  Watson,  i.  482. 
Hartwell  v.  Blocker,  ii.  256. 

I'.  Root,  iii.  210. 
Harvard  College  r.  Society,  &c.,  iii.  521. 
Harvey  v.  Alexander,  iii.  377. 
V.  Brydges,  i.  613,  622. 
V.  Mitchell,  iii.  323. 
V.  Thornton,  ii.  255. 
V.  Tyler,  iii.  52. 
V.  Wickliam,  i.  173,  181. 
V.  Woodhouse,  ii.  202. 
Harvie  v.  Banks,  ii.  230. 
Harvy  v.  Aston,  ii.  10. 
Haskell  v.  Mailev,  ii.  183. 

V.  New  Bedford,  iii.  212. 
V.  Putnam,  i.  556. 
Haskins  v.  Hawks,  ii.  142. 
Hasle  V.  McCoy,  i.  592. 
Haslett  V.  Glenn,  i.  136. 
Hasloge  i\  Krugh,  iii.  20. 
Hassett  v.  Ri<lgely,  i.  680. 
Hastings  v.  Clifford,  i.  325,  327. 


Hastings  v.  Crunckleton,  i.  142,  143. 
V.  Cutler,  iii.  275. 
V.  Dickinson,  i.  252,  314,  318. 
V.  Hastings,  i.  660. 
V.  Pratt,  ii.  170. 
V.  Stevens,   i.   226,  229,  230, 
281,  294. 
Hasty  V.  Wheeler,  i.  147,  157. 
Hatch  V.  Bates,  iii.  253,  288,  293,  294. 
V.  Dwight,  ii.  371 ;  iii.  410,  429. 
V.  Hart,  i.  575. 
V.  Hatch,  i.  468 ;   ui.  247,  288, 

305. 
V.  Kimball,  ii.  195  ;  iu.  76. 
V.  Palmer,  i  228,  229. 
V.  Vermont  Central  R.  R.,  iii.  151. 
V.  White,  ii.  241. 
Hatchell  v.  Kinbrough,  i.  574,  576. 
Hatfield  v.  Sneden,  i.  115, 171, 172,  263, 

265  ;  ii.  684  ;  iii.  253. 
Hathaway  v.  Evans,  iii.  409. 
V.  Juneau,  iii.  399. 
V.  Payne,  iii.  301. 
V.  Valentine,  ii.  141. 
Hathorn  v.  Lyon,  i.  179. 

V.  Stinson,  iii.  388,  411,  416. 
Hathorne  v.  Haines,  iii.  331. 
Hatstat  V.  Packard,  i.  586,  609. 
Hauser  v.  Lash,  ii.  43. 
Haven  v.  Adams,  i.  280 ;    ii.   137,  147, 
167,  252. 
V.  Foster,  ii.  198,  199 ;  iii.  542. 
V.  Hilliard,  iii.  506. 
V.  Wakefield,  i.  453. 
Havens  v.  B.  &  Wor.  R.  R.,  ii.  167. 
V.  Van  Den  Burgh,  iii.  539. 
Haverstick  v.  Sipe,  ii.  347. 
Hawes  v.  Humphrey,  iii.  506,  538. 

V.  Shaw.  i.  566,  568,  569. 
Hawk  V.  McCuUough,  iii.  486,  490. 

V.  Senseman,  iii.  134. 
Hawkes  v.  Brigham,  ii.  243,  269. 
Hawking  v.  Barnej',  iii.  60. 
V.  Clermont,  ii.  66. 
i\  Kemp,  ii.  655. 
V.  King,  ii.  128. 
v.  Lee,  ii.  606. 
V.  Skegg,  i.  134. 
Hawks  V.  Pike,  iii.  294. 
Hawksland  v.  Gatchel,  iii.  285,  299. 
Havvley  v.  Bradford,  i.  207.  296. 

V.  James,  i.  201,  205,  207,  296  ; 

ii.  542. 
V.  Northampton,  i.  Ill ;  ii.  696, 
703. 
Hay  V.  Cohoes  Co.,  ii.  360. 
V.  Coventry,  ii.  581,  718. 
V.  Cumberland,  i.  533. 
V.  Mayer,  i.  167  ;  ii.  638,  665. 
V.  Watkins,  ii.  669. 
Hayden  v.  Bradley,  i.  491. 
V.  Merrill,  i.  663. 
V.  Stoughton,  ii.  7,  11,  15;  iii. 
522,  523,  524. 
Hayes  v.  Bickerstaff,  i.  490. 


Ix 


TABLE   OF    CASES   CITED. 


Hayes  r.  Bowman,  iii.  410. 
V.  Foorde,  ii.  509. 
V.  Kcrshow,  ii.  417,  418,  424. 
V.  Sliattuck,  ii.  j!o2. 
V.  Tabor,  ii.  446,  407,  549. 
V.  Ward,  ii.  214,  218. 
Hayford  v.  Spoiiesfield,  ii.  340,  341,  342. 
Hayne  v.  Cumniiiigs,  i.  470,  487. 

V.  Maltl)y,  iii.  95. 
Hayner  v.  Smitli,  i.  530,  533. 
Haynes  v.  Jackson,  iii.  405. 
V.  Jones,  iii.  Itio. 
V.  Meek,  i.  429. 
V.  Powers,  i.  278. 
V.  Seachrest,  iii.  262. 
V.  Wellington,  ii.  120,  249. 
V.  Young,  iii.  462,  495. 
Hays  V.  Askew,  iii.  101. 
V.  Doane,  i.  26. 
V.  Jackson,  iii.  19. 
V.  Lewis,  ii.  118. 

V.  Richardson,  i.  32,  635  ;  ii.  423. 
Hay  ward  v.  Angell,  ii.  20. 
V.  Howe,  i.  100. 
V.  Sedgiey,  i.  584. 
Hayworth  v.  Worthington,  ii.  50. 
Hazard  v.  Robinson,  ii.  330,  339. 
Hazen  v.  Thurber,  i.  283. 
Hazleton  v.  Lesure,  i.  219. 

V.  Putnam,  i.  633,  039,  640. 
Hazlett  V.  Powell,  i.  631,  545. 
Head  v.  Egerton,  ii.  83. 
Headlam  v.  Ileadley,  iii.  422. 
Headley  v.  Goundray,  ii.  97. 
Healey  v.  Alston,  ii.  515. 
Heap  V.  Barton,  i.  437. 
Heard  v.  Baird,  ii.  78,  79,  81,  527. 
V.  Downer,  i.  384. 
I'.  Evans,  ii.  114,  186. 
V.  Fairbanks,  i.  14. 
V.  Hall,  iii.  76. 
Hearle  v.  Greenback,  i.  165,  169. 
Hearn  v.  Tomlin,  i.  593.  , 

Heath  i'.  Barmore,  ii.  744. 
V.  Vermeden,  i.  558. 
1-.  White,  i.  178,  179,  180. 
Heatherly  v.  Weston,  i.  461. 
Heaton  c.  Findley,  i.  31. 
Hebron  v.  (Centre  Harbor,  ii.  52,  56. 
Hedge  i-.  Drew,  i.  468  ;   iii.  294. 

V.  Holmes,  ii.  261. 
Heed  v.  Ford,  i.  224. 
Hegan  v.  Johnson,  i.  590. 
Hegeman  v.  iMcArthur,  i.  527, 528,  533, 

549,  550. 
Heist  V.  Baker,  ii.  34,  86. 
Heister  v.  Former,  iii.  319. 
V.  Green,  ii.  34,  86. 
V.  Maderia,  ii.  51,  60. 
Helfenstein  v.  Cave,  i.  398. 
Helfenstine  ".  Garrard,  ii.  449. 
Helms  V.  .May,  i.  36  ;  iii.  317,  331. 

V.  O'Bannon,  iii.  320. 
Helps  V.  Hereford,  iii.  95. 
Hemmingway  v.  Scales,  i.  332,  672. 


Hemphill  v.  Flynn,  i.  604. 
V.  Tevis,  i.  586. 
Henagan  v.  Harllee,  i.  221  ;  ii.  198. 
Henchliff  v.  Hinman,  iii.  287. 
llendee  v.  Pinkerton,  iii.  273. 
Henderson  v.  Eason,  i.  062. 

V.  Herrod,  ii.  121,  122^  124. 
V.  Hunter,  ii.  15,  24,  25,  623, 
V.  Pilgrim,  ii.  61,  116,  121. 
Hendricks  v.  Johnson,  ii.  351. 

V.  Stark,  iii.  463,  474. 
Hendrickson's  Appeal,  ii.  149. 
Henkle  v.  AUstadt,  ii.  203. 
Hennen  v.  Wood,  iii.  192. 
Hennesey  v.  Andrews,  ii.  61. 
Hennesy  v.  Farrell,  ii.  108. 

V.  Old   Colony  R.  R.,  iii.  99, 
423. 
Henning  v.  Burnet,  ii.  304,  336,  337. 
Henry  v.  Davis,  ii.  40,  43,  62. 

V.  Tupper,  ii.  21,  22. 
Henry's  case,  i.  276  ;  ii.  212. 
Hensliaw  v.  Bissell,  iii.  81. 
V.  Clark,  ii.  378. 
V.  Wells,   ii.   110,   112,   137, 
220. 
Hepburn  v.  Dubois,  iii.  254. 
Hepburne  r.  Hepburne,  ii.  520. 
Herbert  v.  Freaui,  i.  107. 

V.  Hansick,  ii.  169. 
V.  Wren,  i.  276,  300,  323,  324, 
325. 
Herdman  v.  Bratten,  iii.  299. 
Hermitage  v.  Tompkins,  iii.  91,  116. 
Herndon  v.  Kimball,  iii.  319. 
Heme  v.  Bembow,  i.  160. 
Herr's  Estate,  ii.  484. 
Herrick  v.  At  wood,  ii.  83. 

V.  Graves,  i.  364,  365,  428. 
V.  Malin,  iii.  246. 
Herring  v.  Fisher,  iii.  420. 

V.  Woodhull,  ii.  107. 
Herron  v.  Williamson,  i.  225. 
Herschfeldt  v.  George,  i.  400 ;  iii.  336. 
Herskell  v.  Bushnell,  i.  572,  574,  576. 
Hertell  v.  Van  Bureu,  ii.  663. 
Hess  V.  Hess,  ii.  721. 

V.  Newcomer,  i.  543. 
Hesseltine  t:  Seavey,  i.  547,  549. 
Hester  v.  Kemhrougli,  iii.  199. 
Hetfield  v.  Central  U.  R.,  i.  633. 
Heth  V.  Cocke,  i.  206,  253,  294. 

V.  Richmond,  ii.  515. 
Hethrington  v.  Graham,  i.  243. 
Hewitt  V.  Loosemore,  ii.  83. 

V.  Teinpleton,  i.  396,  409  ;  ii.76. 
Hewlins  v.  Shippam,  i.    33,    115,    631, 

632,  639 ;  ii.  300,  303. 
Hey  V.  Moorhouse,  i.  619,  621. 

V.  Bruner,  i.  28. 
Heyer  v.  Pruyn,  ii.  183,  185,  254. 
Heyman  v.  Lowell,  ii.  252. 
Heyward  v.  Cuthbert,  i.  282. 

V.  Judd,  ii.  72,  76,  106,  264. 
V.  Mayor,  iii.  212,  214. 


TABLE   OF    CASES    CITED. 


Ixi 


Heywood  v.  Hilclreth,  iii.  310. 

V.  Maunder,  ii.  711. 

Hibbard  v.  Hurlburt,  iii.  399. 

V.  Lamb,  ii.  513. 
Hibblewhite  v.  McMorine,  iii.  242. 
Hickman  v.  Irvine,  i.  141,  209. 
Hioko.x  V.  Low,  ii.  46,  48,  59. 
Hicks  V.  Bell,  ii.  379;  iii.  188. 
V.  Bri<rham,  ii.  168. 
V.  Coleman,    iii.    147,    156,    406, 

410. 
V.  Cram,  iii.  72. 
V.  Dowiing,  i.  515. 
V.  Hicks,  ii.  55,  63. 
Hickson  v.  Bryan,  i.  384. 
Hidden  v.  Jordan,  ii.  477. 
Hide  V.  Thornborough,  ii.  359. 
Hiern  v.  Mill,  ii.  83. 
Hiester  v.  Green,  ii.  34,  86. 
V.  Maderia,  ii.  51,  60. 
V.  Scliaeffer,  ii.  282. 
Higbee  v.  liice,  i.  658 ;  iii.  132,  202, 205, 

308. 
Higbie  v.  Westlake,  i.  295. 
Higginbotham  v.  Cornwell,  i.  323,  324. 
Higginbotiom  v.  Short,  i.  677,  684. 
Higgins  V.  Breen,  i.  212. 

V.  Higgins,  i.  346,  882. 
Higginson  v.  JMein,  iii.  207. 
Higii  V.  Batte,  ii.  89. 
Higham  v.  Kabett,  ii.  333,  334. 
Hildebrand  v.  Fogle,  iii.  404. 
Hildreth  v.  Conant,  i.  585. 

V.  Jones,  i.  229,  231. 
V.  Thompson,  i.  284,  304. 
Hill  V.  Bacon,  iii.  461,  478. 
V.  Barclay,  ii.  21,  22. 
V.  Baron,  ii.  542. 
V.  De  Uochmont,  i.  19,  577. 
V.  Dyer,  iii.  206. 
V.  Edwards,  ii.  44,  98,  118. 
V.  Elliot,  ii.  49. 

V.  Epley,  iii.  74,  75,  78,  79,  81,  316. 
V.  Gibbs,  i.  521. 
V.  Hill,  i.  362,  390. 
V.  Jordan,  i.  586;  ii.  138. 
V.  Josselyn,  ii.  521. 
V.  Kingston,  iii.  532. 
V.  Kasler,  i.  343. 
r.  Lord,  iii.  419,  420,  443. 
V.  Meeker,  iii.  325. 
V.  Meyers,  i.  660 ;  iii.  75,  236. 
V.  Miller,  iii.  193. 
V.  Mitchell,  i.  268. 
V.  Moore,  ii.  128. 
V.  Mowry,  iii.  399. 
V.  Robertson,  ii.  102. 
V.  Roderick,  ii.  540. 
V.  Saunders,  i.  563. 
V.  Sewald,  i.  24,  26,  28. 
V.  Smith,  ii.  164,  165. 
V,  Wentworth,  i.  26. 
V.  West,  ii.  140. 
V.  Woodman,  i.  535. 
Hilary  v.  Gay,  i.  624. 


Hilary  ;■.  Waller,  ii.  339. 

Hilhourn  u.  Fogg,  i.  556,  557,  568,  682, 

612. 
Hiller  v.  Marehell,  ii.  58. 
Hillhouse  v.  Chester,  iii.  14. 

V.  Mix,  i.  666. 
Hilliard  v.  Allen,  ii.  236. 

V.  Bin  ford,  i.  324,  325. 
V.  Scoville,  i.  682.     ' 
Hilliary  v.  Hilliary's  Lessee,  ii.  684. 
Hillman  v.  Bouslaugh,  ii.  605. 
Hills  V.  Barnes,  iii.  246. 
V.  Bearse,  iii.  268. 
V.  Dey,  i.  684. 
V.  Eliot,  ii.  482. 
V.  Loomis,  ii.  61. 
V.  Miller,  ii.  299,  308,  312. 
Hillyard  v.  Miller,  iii.  622. 
Himmermann  *'.  Schmidt,  i.  382,  407.  ■ 
Hinchcliff  v.  Hinman,  iii.  322. 
Hinchman  v.  Emans,  ii.  197. 

V.  Stiles,  i.  256. 
Hinckley  v.  Baxter,  i.  6. 
Hindes'  Lessee  v.  Longsworth,  iii.  335. 
Hinds  V.  Allen,  ii.  239. 

V.  Ballou,  i.  220,  227  ;  ii.  117, 118, 

131. 
V.  Mooers,  ii.  124. 
Hind.son  v.  Kersey,  iii.  506. 
Hine  v.  Bobbins,  iii.  319. 
Hines  v.  Frantham,  i.  665. 

V.  Robinson,  i.  660  ;  iii.  93. 
Hingham  v.  Sprague,  i.  588. 
Hinkley  v.  Green,  i.  658. 
Hinman  v.  Booth,  iii.  302. 
Hinsdale  v.  Humphrey,  i.  486;  ii.  281 ; 

iii.  312. 
Hinson  v.  Porter,  ii.  51. 
Hintze  v.  Thomas,  i.  503. 
Hipp  0.  Hackett,  iii.  312. 
Hitchcock  V.  Carpenter,  i.  237. 

V.  Harrington,    i.    226,  227, 
229,  236,  237,  277,  282 ; 
ii.  162. 
V.  Skinner,  i.  682. 
Kitchens  v.  Hitchens,  i.  196,  198,  258. 
Hitchman  ?'.  Walton,  ii.  135. 
Hitner  v.  Ege,  i.  175. 
Hitt  V.  Holliday,  ii.  174. 
Hoag  V.  Hoag,  i.  567,  568. 
v.  Wallace,  iii.  152. 
Hobart  o.  Sanborn,  ii.  101. 
Hobbs  V.  Blandford,  i.  177. 
V.  Fuller,  ii.  261. 
V.  Harvey,  i.  291. 
V.  Lowell,  iii.  73. 
V.  Norton,  iii.  83. 
Hoboken  Land  Co.  i'.  Kerrigan,  iii.  394, 

421. 
Hobson  V.  Hobson,  ii.  47. 

V.  Roles,  ii.  Ill,  118. 
V.  Trevor,  ii.  626. 
Hockenbury  v.  Snyder,  i.  660. 
Hocker  v.  Gentry,  ii.  482. 
Hodge  V.  Boothby,  iii.  418,  419. 


Ixii 


TABLE   OP   CASES   CITED. 


Hodges  V.  Eddy,  iii.  93,  128,  138,  147, 
154,  155. 
V.  Shields,  i.  556,  563. 
V.  Tenn.  Mar.  &  F.  Ins.   Co., 

ii.  43. 
V.  Thayer,  iii.  493. 
Hodgkins  v.  Robson,i.  528. 
Hodgkiiison,  Petitioner,  i.  682. 
V.  Ennor,  ii.  356. 
V.  Fletcher,  iii.  141. 
Hode  V.  Johnson,  i.  384. 
Hudson  V.  Treat,  ii.  239,  255. 
Hors  Appeal,  ii.  209. 
Hoffar  V.  Dement,  i.  649. 
Hoffey  V.  Carej',  ii.  47. 
Hoffman  v.  Armstrong,  i.  12. 
V.  Neuhaus,  i.  391. 
V.  Porter,  iii.  263. 
V.  Savage,  i.  308  ;  ii.  3-30. 
V.  Stii?ers,  i.  332,  333,  645,  675, 
6^80. 
Hoffman,  &c.   Co.  v.  Cumberland,  &c. 

Co.,  ii.  483,  485,  524. 
Hoffstetter  v.  Blattner,  i.  657. 
Hogan  V,  Brainard,  ii.  41. 
V.  Page,  iii.  263. 
V.  Jaques,  ii.  51,  476,  477,  491. 
V.  Stone,  ii.  224,  235. 
Hoge  V.  Hoge.  ii.  486 ;  iii.  530,  532. 
Hogel  u.  Lindell,  ii.  51. 
Hogg  V.  Gill,  ii.  325,  330. 
Hogsett  V.  Ellis,  i.  591,  592,  595,  619 ; 

ii.  106. 
Hoit  y.  UnderhiU,  i.  458. 
Hoitt  I'.  Webb,  i.  361,  374 ;  ii.  98. 
Holabird  v.  Burr,  ii.  224. 
Holbrook  v.  Betton,  ii.  41. 
V.  Bliss,  ii.  268. 
V.  Chamberlin,  iii.  288. 
V.  Finney,  i.  220. 
V.  Tirrell,  iii.  306,  307. 
V.  Young,  i.  515,  582. 
Holcomb  V.  Coryell,  i.  655,  656. 

V.  Holcomb,  ii.  253,  254,  258. 
V.  Luke,  iii.  527. 
Holcroft  V.  Heel,  ii.  319. 
Holden  v.  Fletcher,  iii.  469. 

V.  Pike,  ii.  195,  203,  206. 
V.  Pinney,  i  353,  366,  367,  420. 
Holder  v.  Coates,  i.  12. 
Holderby  v.  Walker,  ii.  720. 
Holford  V.  Hatch,  i.  498,  511.  512,  515, 
516. 
V.  Parker,  iii.  299,  305. 
Holland  v.  Cruft,  i.  112. 
HoUenbeck  v.  Rowley,  iii.  420,  422. 
Hollett  V.  Pope,  ii.  706. 
Holley  y.  Hawley,  iii.  128,  143,  319. 
Holladay  v.  Daily,  iii.  258. 
Holliday  v.  Franklin  Bank,  ii.  145. 

I'.  Arthur,  ii.  50,  51. 
Hollis  V.  Hayes,  ii.  480. 

V.  Pool,  i.  598,  599,  615,  627. 
Hollister  i'.  Young,  iii.  141. 
Holloman  v.  HoUoman,  i.  292. 


Holly  V.  Brown,  i.  585. 
Holman  v.  Bailey,  ii.  159,  162,  172. 
V.  Holman,  276. 
V.  Martin,  i.  356. 
Holmes  v.  Helliniiliam,  iii.  422. 
V.  Blogg^i-  458,  462. 
V.  Buckley,  ii.  283. 
V.  Fisher,  ii.  66,  67,  257. 
V.  Goring,  ii.  307,  3-32. 
i\  Grant,  ii.  48,  54,  56,  60. 
V.  Holmes,  i.  677. 
V.  Mead,  ii.  523 ;  iii.  516,  520, 

521. 
V.  Railroad,  iii.  62. 
r.  Seeley,  ii.  333. 
V.  Tremper,  i.  28,  29. 
V.  Trout,  iii.  307. 
Holms  I'.  Seller,  ii.  303. 
Holridge  '•.  Gillespie,  ii.  63,  65, 120, 197. 
Holt  V.  Plempliill,  iii.  224. 
V.  Robertson,  i.  662. 
V.  Rees,  ii.  110, 128,  17L 
Holton  V.  Goodrich,  iii.  441. 
V.  Meighan,  ii.  51. 
V.  Whiting,  iii.  138,  146,  160. 
HoltzapflEel  v.  Baker,  i.  535. 
Home  V.  Richards,  iii.  413. 
Home  Life   Insurance   v.   Sherman,  i. 

526  ;  iii.  478. 
Homestead  Cases,  i.  344,  351,  362,  417. 
Honeywood  v.  Honeywood,  i.  141. 
Honore  v  Bakewell,  ii.  88,  90,  92. 
Hood  V.  P'aston,  ii.  223. 
V.  2klather,  i.  559. 
Hoofnagle  v.  Anderson,  iii.  192. 
Hoogland  v.  Watt,  i.  253. 
Hooker  v.  Cummings,  iii.  413. 

V.  Hooker,  i.  178,  196,  197. 
V.  N.  H.  &  N.  Co.,  iii.  213. 
V.  Utica  T.  Co.,  ii.  743. 
Hoole  V.  Attorney-General,  ii.  147. 
Hooper,  ex  parte,  ii.  83. 
V.  Clark,  ii.  287. 
V.  Cummings,  ii.  13,  18. 
V.  Ramsbottom,  iii.  303. 
V.  Scheimer,  iii.  199. 
Hoopes  V.  Bailey,  ii.  5'.t,  181. 
Hooton  V.  Grant,  ii.  99,  140. 
Hoots  V.  Graham,  i.  624. 
Hoover  v.  Gregory,  iii.  18. 

V.  Samaritan  Soc,  ii.  654. 
Hopcroft  V.  Keys,  i.  561. 
Hope  V.  Stone,  ii.  93, 477;  iii.  95, 476,479. 
Hopkins  i'.  Garrard,  ii.  88. 

V.  Hopkins,  ii.  400,  403,  417, 

458,  461,  587,  691. 
V.  Jones,  ii.  263. 
V.  Steplienson,  ii.  228. 
V.  Ward,  ii.  2-56. 
Hopkins  Academy  v.  Dickinson,  iii.  412. 
Hopkinson  v.  Dumas,  204  ;  ii.  476,  479, 
4S5,  502,  516. 
V.  McKnight,  iii.  485. 
Hopper  r.  Hopper,  i.  278. 

i;.  Parkinson,  i.  401. 


TABLE   OF    CASES   CITED. 


Ixiii 


Hopping  V.  Burnam,  iii.  324. 

Horlock  V.  Smith,  ii.  236. 

Horn  y.  Tufts,  i.  oGl,  374,  376,  388,  415. 

V.  Kettletas,  ii.  51. 
Hornbeck  v.  Westbrook,  iii.  265,  266, 

442.  443. 
Hornby  v.  Houklitcli,  i.  494. 
Horner  v.  Leeds,  i.  442,  561. 
Hornsey  v.  Casey,  i.  324. 
Horsetail  v.  Mather,  i.  506. 
Horseley  v.  Garth,  iii.  319. 
Horsey  v.  Horsey,  ii.  10. 
Horstman  r.  Gerkin,  ii.  102. 
Horton  v.  Crawford,  iii.  178. 
V.  Horner,  ii.  92. 
V.  Sledge,  ii.  439,  451,  515 ;  iii. 
3-58. 
Horwitz  V.  Norris,  ii.  656. 
Hosford  V.  Ballard,  ii.  18. 
V.  Meriam,  i.  679. 
V.  Nichols,  ii.  246. 
Hoskin  v.  Woodward,  i.  23  ;  ii.  134,  157. 
Hoskins  v.  Hawkes,  ii.  142. 

V.  Litclifield,  i.  409,  423. 
V.  Rhodes,  i.  576. 
Host  V.  Kearney,  i.  499. 
Hotchkiss  V.  Elting,  ii.  530,  649. 
Houell  V.  Barnes,  ii.  470. 
Hough  V.  Bailey,  ii.  47. 
V.  Birge,  i.  592. 
Houghton  V.   Hapgood,  i.   31,  166 ;    ii. 
214,  498. 
V.  Jones,  iii.  322. 
V.  Marshall,  i.  416. 
Houpes  r.  Alderson,  ii.  337. 
House  V.  House,  i.  14,  24,  125. 

V.  Jackson,  ii.  550. 
Houser  v.  Reynolds,  i.  458. 

V.  Lamont,  ii.  56. 
Houston  V.  Laffce,  i.  630,  632. 
V.  Sneed,  iii.  88. 
V.  Stanton,  iii.  294. 
Hovey  v.  Hobson,  i.  455 ;  iii.  249,  250. 
252. 
V.  Newton,  iii.  463. 
V.  Sawyer,  iii.  408. 
How  V.  Vigures,  ii.  39. 
Howard  v.  Am.  Pe.ace  Soc,  iii.  518,  531. 
V.  Ames,  ii.  68,  74. 
V.  Candish,  i.  286. 
V.  Carpenter,  i.  627. 
V.  Doolittle,  i.  491,  535. 
V.  Ellis,  i.  546. 
V.  Fessenden,  i.  6. 
V.  Handy,  ii.  253. 
V.  Harris,  ii.  62,  63,  174. 
V.  Hildreth,  ii.  184. 
V.  Howard,  ii.  128,  189. 
V.  Hudson,  iii.  82. 
V.  Hutiinan,  iii.  307. 
V.  Merriam,  i.  585,  686,  599, 604, 

605,  610,  611,  612. 
V.  Priest,  i.  201,  666,  667,  669, 

670. 
V.  Reedy,  iii.  140,  160. 


Howard  v.  Robinson,  ii.  101, 165. 

V.  Shaw,  i.  590,  592,  593,  595. 
V.  Wadsworth,  iii.  436. 
Howard  Ins.  Co.  v.  Halsey,  ii.  203. 

Mut.  L.  Asso.  V.  Mclntyre,  ii. 
145 ;  iii.  315. 
Howards  v.  Davis,  ii.  74. 
Howe,  in  matter  of,  ii.  42. 

V.  Adams,  i.  363,  379,  392,  403, 

418,  428. 
V.  Alger,  ii.  307 ;  iii.  99,  395,  421, 

485. 
V.  Bass,  iii.  403. 
V.  Batchelder,  i.  10,  11,  632 ;  iii. 

346. 
V.  Dewing,  iii.  293. 
V.  Howe,  iii.  249,  251,  294,  332. 
V.  Lewis,  ii.  101,  128,  171,  187. 
V.  Russell,  ii.  43. 
V.  Wilder,  ii.  188 ;  iii.  306. 
Howell  V.  Howell,  ii.  474,  476,  477. 
V.  King,  ii.  335. 
V.  Price,  ii.  49. 
V.  Richards,  iii.  487. 
V.  Saule,  iii.  400. 
V.  Schenck,  i.  137,  138. 
Howland  v.  Coffin,  i.  496,  497,  498,  499, 
504,  521,  522. 
V.  ShurtleflF,  ii.  237. 
V.  Vincent,  i.  541. 
Hoxie  V.  Ellis,  i.  302. 

V.  Finney,  ii.  97  ;  iii.  476. 
Hoy  V.  Sterrett,  ii.  319,  323,  324,  325, 

347,  357. 
Hoye  V.  Swan,  iii.  152. 
Hoyle  V.  Logan,  iii.  331. 

V.  Plattsburg,  &c.  R.  R.,  i.   16  ; 

ii.  157. 
V.  Stowe,  i.  458. 
Hoyt  V.  Doughty,  ii.  143. 
V.  Howe,  i.  404. 
V.  Kimball,  i.  677,  680 ;  ii.  7. 
V.  Martense,  ii.  41. 
V.  Swar,  i.  246  ;  iii.  256. 
Hubbard  v.  Apthorp,  iii.  477. 

V.  Hubbard,  i.  323  ;  ii.  12,  17, 

19,  67. 
V.  Little,  iii.  147. 
V.  Norton,  iii.  462. 
V.  Savage,  ii.  151. 
V.  Shaw,  i.   129 ;  ii.  223,  224, 

229. 
V.  Wood,  i.  658. 
Hubbell  V.  Warren,  ii.  309. 

V.  Canady,  i.  370,  395,  422. 
Hubble  V.  Wright,  ii.  47. 
Hudson  V.  White,  iii.  276. 
Huey's  Appeal,  i.  402. 
Hufi'y.  Earle,  ii.  483. 

V.  McAuley,  i.  636  ;  iii.  346,  352- 
V.  McDonald,  i.  661. 
Hughes  V.  Easten,  iii.  287. 

V.  Edwards,  ii.  8,  43,  97,  129, 

166,  167,  182,  183,  248. 
V.  Graves,  iii.  165. 


Ixiv 


TABLE   OF   CASES   CITED. 


Hughes  V.  Ilolliilay,  i.  6G5. 

V.  Kearney,  ii.  "JO,  91. 
V.  Lyon,  ii.  8L 
V.  Monty,  iii.  334. 
V.  Rol)otliam,  i.  558. 
I'.  Sin'aH',  ii.  07. 
V.  Watson,  i.  246. 
i;.  Wilkinson,  iii.  307. 
V.  Williams,  ii.  224. 
Hugley  V.  Gregg,  i.  238. 
Hulburt  V.  Emerson,  i.  100,  104. 
Hulick  V.  Scovil,  iii.  185,  206,  266,  282, 

288,  292,  294. 
Hull  V.  Beals,  u.  606. 

V.  Vaughn,  i.  59-3,  594. 
V.  Waterhouse,  iii.  253. 
Hull  &  Selby  Railway,  in  re,  iii.  59. 
Hultain  v.  JNlunigle,  i.  607. 
Humberston  v.  Ilumberston,  ii.  581. 
Hume  V.  Gassett,  i.  370. 
Hummer  v.  Schott,  ii.  91. 
Humphrey  v.  Pliinny,  i.  291. 
Humphries  v.  Brogden,i.  17, 18;  ii.  359, 
361,  302. 
V.  Humphries,  i.  137,  589. 
Huncher  v.  Whitney,  i.  607. 
Hungerforcl  v.  Clay,  ii.  139. 
Hunnewell  v.  Taylor,  i.  681,  682. 
Hunsden  ?•.  Cheyney,  iii.  83. 
Hunt  V.  Acre,  ii.  250. 

V.  Bay  State  Co.,  i.  24. 

V.  Beeson,  ii.  5. 

V.  Cope,  i.  627,  529,  532. 

V.  Danforth,  i.  500,  501.         ; 

V.  Hall,  i.  155. 

V.  Harding,  ii.  248. 

r.  Hunt,  ii.  117,  168, 195,441,  516, 

517  ;  iii.  3-59. 
t".  Johnson,  i.  333. 
V.  Lewin,  ii.  49,  262. 
V.  Maynard,  ii.  50,  130,  222. 
V.  Moore,  ii   478. 
V.  Morton,  i.  602,  610. 
V.  Rousraaniere,  ii.  69,  635,  663, 

677. 
V.  Stiles,  ii.  123,  242. 
V.  Thompson,  i.  520. 
V.  Wicklifte,  iii.  199,  201. 
V.  Wright,  i.  677,  680 ;  ii.  9. 
Hunter  v.  Hemphill,  iii.  192,  193. 
V.  Hunter,  ii.  140. 
V.  Marlboro',  ii.  493. 
V.  Martin,  i.  607. 
V.  (Jsterhoudt,  i.  482 ;  ii.  19. 
V.  Richardson,  ii.  188. 
V.  Trustees,  iii.  73. 
V.  Watson,  iii.  266,  317. 
Huntington  v.  Cotton,  ii.  163. 

u.  Havens,  iii.  100,  101. 
V.  Smith,  ii.  118,  140. 
V.  Whaley,  iii.  160. 
Huntington  &  Montjoy's  case,  ii.  377. 
Huntley  v.  Russell,  i.  140, 144, 146,  150, 
156. 
V.  0 'Flaherty,  ii.  206. 


Hurd  V.  Coleman,  ii.  181. 

V.  Curtis,  ii.  28.') ;  iii.  432, 441, 470. 
V.  Cushing,  i.  115. 
V.  Darling,  i.  573. 
V.  Grant,  i.  280. 
V.  Robinson,  ii.  48,  152. 
Hurlbnrt  v.  Leonard,  ii.  324. 
V.  Tost,  i.  450,  533. 
Hurn  V.  Soper,  iii.  322,  378. 
Hurst  V.  McNeil,  ii.  447,  505. 

V.  Rodney,  i.  499. 
Huse  V.  Morris,  iii.  383. 
Huson  V.  Young,  ii.  337. 
Huss  V.  Stepiieiis,  iii.  267. 
Hussey  v.  Blood,  i.  087. 
Huston  V.  Cantril,  iii.  334. 
Hutch  V.  Bates,  iii.  371. 
Hutchings  v.  Low,  iii.  197,  201. 
Hutchins  v.  Byrnes,  iii.  239,  271. 

V.  Carlton,  ii.  118,  196,  197. 
V.  Hevwood,  ii.  445,  475,  491. 
V.  Huggins,  i.  422;  iii.  383. 
V.  King,  i.  12. 

V.  State  Bank,  ii.   115,   116, 
654. 
Hutchinson  v.  Chase,  i.  660. 
V.  Tindall,  ii.  505. 
V.  Rust,  iii.  322,  327. 
Hutton  V.  Schumaker,  iii.  149. 

V.  Warren,  i.  137. 
Huyser  v.  Chase,  i.  599,  607. 
Hyat  V.  Ackerson,  i,  236. 
Hyatt  V.  Spearman,  i.  348. 

V.  Wood,  i.  613,  617,  622,  624. 
Hyde  v.  Stone,  i.  660. 
Hyman  v.  Read,  iii.  190,  205. 
Hyndraan  ;;.  Hyndman,  ii.  51,  63,  74. 
Hynson  v.  Burton,  ii.  491. 


Iddings  t'.  Bruen,  ii.  81. 

Ide  V.  Ide,  i.  80;  ii.  544,  696,  708,  720; 

iii.  529. 
Idle  V.  Cooke,  i.  100. 
Iglehart  v.  Armiger,  ii.  86. 
Illinois  C.  R.  R.  v.  McCullough,  iii.  303. 
Inclidon  c.  IS'orthcole,  i.  323. 
Inches  v.  Leonard,  ii.  183. 

V.  Hill,  ii.  542. 
Ing  V.  Cromwell,  ii.  110. 
Ingalls  V.  Eaton,  iii.  451. 
Ingersol  v.  Sargeant,  ii.  275,  288. 
Ingle  V.  Jones,  ii.  661. 
Inglehart  v.  Crane,  ii.  130,20.3,  204,  206, 

211,  219. 
Inglls  V.  Trustees  S.  S.  Harbor,  ii.  506, 

519,  686;  iii.  518. 
Ingoldsby  v.  Juan,  iii.  255,  257. 
Ingraham  y.  Baldwin,  i.  556,  600;   iii. 
249. 
V.  Hutchinson,  ii.  347,  357. 
V.  Wilkinson,  iii.  57,  412,  413. 
Ingram  v.  Hall,  iii.  275. 


TABLE   OF   CASES   CITED. 


Ixv 


Ingram  v.  Little,  iii.  242. 

V.  Morris,  i.  208,  252. 
V.  Smith,  ii.  265. 
Inhabitants,  &c.  v.  Huntress,  iii.  242. 

Roxbury  v.  Stoddard,  i.  4. 
Inman  v.  Jackson,  iii.  529. 
Innerarity  v.  Minis,  iii.  192. 
Ireland  v.  Nichols,  i.  472. 

;;.  Wool  man,  ii.  206. 
Irvin  V.  Smith,  iii.  824. 
Irvine  y.  Irvine,  ii.  518 ;  iii.    107,  249, 
251. 
V.  Marshall,  iii.  187. 
V.  McKeon,  iii.  376. 
V.  Wood,  i.  539. 
Irwin  V.  Cavade,  i.  144. 

V.  Davidson,  ii.  86,  134,  169. 
V.  Ivers,  ii.  481. 
V.  Piiillips,  ii.  380. 
Isaac  V.  Gearliart,  i.  587. 
Ischam  v.  Morrice,  iii.  116. 
Isett  V.  Lucas,  ii.  124. 
Isham  V.  Bennington  Co.,  iii.  271,  273, 

319,  320. 
Israel  v.  Israel,  i.  661,  662,  664. 
Ives  V.  Allyn,  iii.  530. 
tf.  Ashley,  ii.  484. 
V.  Davenport,  ii.  656. 
V.  Ives,  i.  622. 
V.  Mills,  i.  396. 
Ivory  V.  Burns,  iii.  380. 
Ivy  V.  Gibert,  ii.  76. 
Izard  V.  Bodine,  i.  661. 
Izon  V.  Gartan,  i.  544,  545,  605. 


J. 


Jackman  v.  Ringland,  ii.  481. 
Jackson  v.  Aldrich,  i.  585. 

V.  Alexander,  iii.  370. 

V.  Allen,  i.  483;  ii.  16,  19. 

V.  Andrew,  i.  146,  147,  152. 

V.  Ayers,  iii.  91,  117. 

V.  Babcock,  i.  631,  632,  634. 

V.  Baker,  iii.  293. 

V.  Bard,  iii.  286,  310. 

V.  Berner,  iii.  134. 

V.  Blanshan,  ii.  684;  iii.  527. 

V.  Blodyet,  ii.  122. 

V.  Bodle,  i.  468  ;  iii.  292. 

V.  Bowen,  ii.  112,  115;  iii.  65. 

V.  Bradford,  iii.  107,  117,  359. 

V.  Bradt,  i.  590,  C02. 

V.  Brinkerhoff,  iii.  96,  117. 

V.  Bronson,  ii.  118,  122,  128. 

V.  Brown,  ii.  581,582. 

V.  Brownell,  i.  574. 

V.  Brownson,  i.  131,  141,  142, 
484. 

V.  Bryan,  i.  570,  610. 

V.  Bull,  i.  86 ;  ii.  720  ;  iii.  91, 
104,  116,  117,  528. 

V.  Burchin,  i.  456 ;  iii.  252. 


Jackson  v.  Bush,  ii.  29. 

V.  Cadvvell,  ii.  443,  450,  454, 

iii.  220,  355,  370,  372. 
V.  Carey,  ii.  410,  450. 
V.  Carpenter,  i.  456 ;   iii.   250, 

252. 
V.  Catlin,  ii.  399 ;  iii.  207,  215, 

302,  305,  348. 
V.  Chase,  iii.  247. 
V.  Churchill,  i.  278. 
V.  Clark,  ii.  76 ;  iii.  399. 
V.  Cleveland,  ii.  476;  iii.  284. 
V.  Colden,  iii.  315. 
V.  Collins,  i.  565,  570,  571. 
V.  Corey,  iii.  265. 
V.  Corliss,  i.  472. 
V.  Crofts,  ii.  129,  171,  173. 
V.  Croy,  iii.  230,  280. 
V.  Crysler,  i.  482;  ii.  19. 
V.  Dashiel,  ii.  706. 
V.  Davis,  i.  498,  499,  559 ;  ii. 

128,  171. 
V.  Defendorf,  iii.  402. 
V.  Delacroix,  i.  449. 
V.  Delancey,  ii.  140,  141,  489, 

544;  iii.  370,  372. 
V.  Dewitt,  i.  225,  226. 
V.  Deyo,  i.  600 ;  ii.  527. 
V.  Dickenson,  iii.  309. 
V.  Dillon,  iii.  368,  369,  371. 
V.  Dubois,  ii.  149. 
V.  Dunlap,  i.  468 ;  iii.  292,  295. 
V.  Dunsbagh,  ii.  418,  450,  454, 

616. 
V.  Dysling,  ii.  340 ;  iii.  87. 
V.  Eddy,  i.  532. 
V.  Eldridge,  i.  451. 
V.  Elston,  iii.  156. 
V.  Farmer,  i.  622,  624. 
V.  Feller,  ii.  479,  480. 
V.  Fish,  ii.  450;  iii.  362. 
V.  Florence,  iii.  370. 
V.  Ford,  ii.  61. 
V.  Fuller,  ii.  112. 
V.  Gardner,  i.  547,  551. 
V.  Garnsey,  iii.  338. 
V.  Gilchrist,  i.  335 ;  iii.  253,  254. 
V.  Given,  ii.  509. 
V.  Green,  ii.  45. 
V.  Harder,  i.  685. 
V.  Harper,  i.  559. 
V.  Harrington,  i.  568;  ii.  331. 
V.  Harrison,  i.  481. 
V.  Hart,  iii.  183. 
V.  Hathaway,     iii.     387,     394, 

420. 
V.  Hayner,  iii.  281,  327. 
V.  Henry,  ii.  76  ;  iii.  334. 
V.  Hixon,  i.  276. 
V.  Hobhouse,  iii.  545. 
V.  Hotfman,  iii.  109,  110,  112. 
V.  Holloway,  iii.  536. 
V.  Hopkins,  ii.  112. 
V.  Housell,  i.  85. 
V.  Howe,  i.  59 ;  iii.  152. 


Ixvi 


TABLE   OF   CASES   CITED. 


Jackson  u.  Hubble,  iii.  107,  359. 
V.  Hudson,  iii.  187. 
V.  Humphrey,  iii.  315. 
V.  Ireland,  iii.  102. 
V.  Jackson,  iii.  503,  505. 
V.  Jansen,  ii.  651,  652. 
V.  Johnson,   i.    173,    174,    175, 

177,  179,  180. 
V.  Kip,  i.  481 ;  ii.  684. 
V.  Kisselbraek,  i.  451. 
V.  Laughead,  i.  499. 
V.  Lawton,  iii.  198. 
V.  Leek,  iii.  283,  293,  324,  370. 
V.  Leggett,  iii.  331. 
V.  Leonard,  iii.  145. 
i\  Livingston,  1.  654 ;  iii.  327. 
I'.  Lunn,  i.  74. 
V.  Mancius,  i.  119,  126. 
V.  IVIartin,  iii.  528. 
V.  Massachusetts   Ins.    Co.,   ii. 

166. 
•     w.  Matsdorf,  ii.  474,  480;    iii. 

109. 
V.  McCall,  iii.  308,  309,  427. 
V.  McKenny,  ii.  418. 
V.  McLeod,  i.  603,  618. 
V.  Merrill,  i.  86. 
V.  Miller,  i.  469,  590,  600. 
V.  Mills,  iii.  110. 
V.  Minkler,  ii.  112. 
V.  Moore,  iii.  162,  491. 
V.  Morse,  ii.  471,  504. 
V.  Murray,  iii.  88,  91,  103,  466. 
V.  Myers,  i.  83,  115,  451 ;    ii. 

410,  4.50. 
V.  Newton,  iii.  144,  152. 
V.  O'Donaghy,  i.  304. 
V.  Ogden,  iii.  88. 
V.  Osborn,  iii.  246. 
V.  Parkhurst,  i.  617,  619. 
V.  Peck,  iii.  112. 
V.  Pesked,  ii.  742. 
V.  Phillips,  i.  76 ;  ii.  704,  716, 

719;  iii.  276,  515,  517,  519, 

520,  521,  522. 
V.  Phipps,  iii.  283,  292,  293. 
V.  Pierce,  i.  591 ;  ii.  527. 
V.  Pike,  iii.  370. 
V.  Porter,  iii.  187. 
V.  Potter,  iii.  542. 
V.  Reeves,  iii.  407. 
V.  Richards,  i.  468 ;  iii.  154. 
V.  Roberts,  iii.  230,  293. 
V.  Robins,  ii.  720,  721. 
V.  Root,  ii.  4-50. 
V.  Rounseville,  i.  31. 
i;.  Rowland,  i.  499,  559,  561; 

iii.  302,  305. 
V.  Sackett,  ii.  185. 
V.  Salmon,  i.  603. 
V.  Schauber,  ii.  651. 
V.  Schoonmaker,   i.    126,  440 ; 

ii.  744;  iii.  148,  149,  151, 

152,  282,  315,  327,  370. 
V.  Schutz,  i.  60. 


Jackson  u.  Sebring,  ii.  425,   443,   454; 
iii.  370,  372. 

V.  Seelye,  i.  622. 

V.  Sellick,  i.  174,  177. 

V.  Sharp,  iii.  158. 

V.  Sheldon,  i.  484,  606  ;  iii.  300, 
302,  303. 

V.  Shepard,  iii.  223. 

V.  Sisson,  iii.  264. 

V.  Slater,  ii.  185. 

V.  Spear,  i.  560. 

V.  Staats,  ii.  418. 

V.  Stacej',  ii.  334. 

V.  Stackhouse,  ii.  112. 

V.  Stanford,  iii.  273. 

V.  Stevens,  i.  332;  iii.  109,  259, 
466. 

V.  Stewart,  i.  559. 

V.  Stiles,  i.  558. 

V.  Sublett,  ii.  553. 

V.  Swart,  ii.  418. 

V.  Tibbitts,  i.  141,  146,  6.57. 

V.  Topping,  ii.  16 ;  iii.  527. 

V.  Town,  iii.  337. 

V.  Van  Corlaer,  iii.  88. 

V.  Van  Dalfsen,  ii.  524. 

V.  Vanderheyden,  i.    303 ;    iii. 
230,  260. 

V.  Van  Hoesen,  i.  118. 

V.  Van  Slyck,  ii.  527. 

V.  Van  Zandt,  i.  111. 

V.  Veeder,  ii.  659. 

V.  Vermilyea,  iii.  388. 

V.  Vincent,  i.  120,  565,  570. 

V.  Vnsburg,  i.  685. 

V.  Waldron,  ii.  696,  714 ;     iii. 
107. 

V.  Walker,  ii.  491. 

V.  Walsh,  ii.  73,  524. 

V.  Warlord,  iii.  150,  151. 

V.  Warren,  ii.  147,  170,  252, 

V.  Wendell,  iii.  272. 

V.  Wheat,  iii.  136,  162. 

V.  Wliedon,  i.  559. 

V.  Wheeler,  i.  570,  571. 

V.  Whitbeck,  i.  658. 

V.  Wilcox,  iii.  193. 

V.  Willard,  ii.  97,  118,  140,  165. 

V.  Winslow,  iii.  191. 

;;.  Wood,  iii.  187,  272,  308,  313. 

V.  Woodruff,  iii.  152,  154. 

V.  Wright,  iii.  96,  109,  348. 
Jacobs  V.  Moronge,  iii.  83. 
Jacoway  v.  Gault,  ii.  144  ;  iii.  315. 
Jaffe  V.  Harteau,  i.  539. 
Jake  way  v.  Barrett,  iii.  154,  415. 
Jamaica  Pond  Co.  v.  Chandler,  i.  442; 

iii.  316,  353,  390,  408,  435,  437. 
James  v.  Allen,  iii.  513. 
V.  Brown,  ii.  130. 
V.  Dean,  i.  586. 
V.  James,  ii.  533. 
V.  Johnson,  ii.  61,  64,  148,  193. 
V.  Morey,  i.  228,  230,  231 ;  ii.  43, 
193, 194, 196,  616,  617  ;  iii.  4. 


TABLE   OF    CASES    CITED. 


Ixvii 


James  v.  Plant,  iii.  387. 
V.  Steele,  ii.  72. 
V.  Thomas,  ii.  64. 
V.  Vanderlievden,  iii.  302. 
V.  Wynforil,'u.  730. 
Jameson  v.  Smith,  ii.  G51. 
Jamieson  v.  Bruce,  ii.  110. 

V.  Milleman,  i.  634,  637,  639. 
Jamison  i\  Glascock,  ii.  483,  523. 
Janes  v.  Jenkins,  iii.  461,  474. 
Jaques  v.  Gould,  i.  518,  520,  536. 

V.  Metliodist  Church,  iii.  297. 
V.  Short,  i.  499. 
V.  Weeks,  ii.  43,  44,  46,  61. 
Jarrett  v.  Tomlinson,  iii   332. 
Jarvis  v.  Putcher,  ii.  85. 
V.  Russick,  iii.  210. 
V.  Whitman,  ii.  218. 
V.  Woodruff,  ii.  181. 
Jason  V.  Eyers,  ii.  63. 
Jayne  v.  Gregg,  iii.  299. 
Jeffers  v.  Radcliff,  i.  655. 
Jeffersonville  Association  v.  Fisher,  ii. 

69. 
Jemmott  v.  Cooly,  ii.  281. 
Jencks  v.  Alexander,  ii.  70,  475,  531. 
Jenkins  v.  Freyer,  ii.  203,  552. 
V.  Jenkins,  i.  212. 
V.  Jones,  ii.  68,  74,  77,  78. 
V.  Young,  i.  83 ;  ii.  409,  410. 
Jenks  V.  Morgan,  iii.  408. 

V.  Ward,  iii.  428,  461. 
Jenney  v.  Laurens,  ii.  466. 
Jennings,  ex  parte,  iii.  411. 

V.  Alexander,  i.  516. 
V.  Bragg,  iii.  305. 
V.  Ward,  ii.  64. 
V.  Whitaker,  iii.  193. 
Jennison  v.  Hapgood,  i.  207,  295,  300 ; 
ii.  74,  483,  484,  524. 
V.  Walker,  ii.  333,  339,  353, 
371. 
Jenny  v.  Jenny,  i.  217,  245 ;  ii.  499. 
Jervis  v.  Bruton,  i.  107. 
Jesser  v.  Gifford,  ii.  742. 
Jesson  V.  Doe,  ii.  G02. 
Jewell  V.  Warner,  i.  111. 

V.  Lee,  ii.  311. 
Jewett  V.  Berry,  i.  481. 

V.  Brock,  i.  368,  392,  403,  404, 

418. 
V.  Foster,  i.  6.54. 
V.  Jewett,  ii.  339,  371. 
V.  Miller,  iii.  79,  82. 
V.  Wliitney,  i.  659. 
Jewett's  Lessee  v.  Stockton,  i.  655. 
Jiggits  V.  Jiggits,  i.  269. 
Jillson  V.  Wilcox,  ii.  606. 
Jobe  V.  O'Brien,  ii.  206. 
John  and  Cherry  Sts.,iii.  214. 
Johnson  v.  Anderson,  iii.  421 
V.  Baker,  iii.  299. 
V.  Ball,  ii.  578;  iii.  302,  537. 
V.  Beauchamp,  i.  596. 
V.  Blydenburgh,  ii.  40. 


Johnson  v.  Boutock,  iii.  359. 

V.  Brown,    ii.    121,    127,    143, 

256. 
V.  Camp,  i.  10. 
V.  Candage,  ii.  120,  175. 
V.  Carpenter,  ii.  107,  148,  247. 
V.  Clark,  ii.  50. 
V.  Collins,  iii.  201. 
V.  Conn.  Bank,  ii.  491. 
V.  Delacroix,  i.  450,  451. 
V.  Elhott,  i.  300. 
V.  Farley,  iii.  282,  284,  296. 
V.  Ferguson,  ii.  47. 
V.  Gorham,  iii.  136. 
V.  Hannahan,  622. 
V.  Harmon,  ii.  250. 
V.  Harris,  i.  653,  665. 
V.  Hartshorn,  i.  461. 
V.  Johnson,  i.  682  ;  ii.  129, 195, 

411,  439,  584. 
V.  Jordan,   ii.   305,    308,    314, 

315,  316,  318,  374. 
V.  Kinnicutt,  ii.  337. 
V.  Mcintosh,  i.  63,  64;  iii.  182, 

183,  186. 
V.  Mehatf'ey,  i.  27. 
V.  Morrell,  ii.  113. 
V.  Morse,  i.  273. 
V.  Muzzy,  i.  486  ;  ii.  139,  281 ; 

iii.  312. 
V.  Nash,  iii.  138,  145. 
V.  Neil,  i.  273. 
V.  Oppenheim,  i.  507,  611. 
V.  Parks,  ii.  381. 
V.  Perley,  i.  209. 
V.  Philhps,  ii.  102. 
V.  Kayner,  iii.  389,  896. 
V.  Rice,  ii.  201,  202,  211. 
V.  Richardson,   i.   4,    71,   360, 

365;  ii.  153. 
V.  Shields,  i.  302,  303. 
V.  Simcock,  ii.  684 ;  iii.  527. 
V.  Simpson,  iii.  402. 
V.  Sherman,  i.  503,  523 ;  ii.  50. 
V.  Stagg,  ii.  114;  iii.  309. 
V.  Stevens,  655 ;  ii.  163,  164. 
V.  Stewart,  i.  607. 
V.  Stillings,  i.  333. 
V.  Swaim,  i.  657. 
V.  Valentine,  ii.  545,  551. 
V.  White,  ii.  136. 
V.  Williams,  ii.  202,  206,  211. 
Johnston  v.  Gray,  ii.  62,  63. 

V.  Humphreys,  ii.  492. 
V.  Smith,  i.  518. 
V.  Vandyke,  i.  191,  289. 
Johnstone  v.  Huddlestone,  i.  551,  605. 
Jones  V.  Berkshire,  iii.  316. 

V.  Brewer,  i.  273,  274,  275,  292, 

305. 
V.  Bush,  ii.  458;  iii.  292. 
V.  Carter,  i.  471, 474,  482 ;  iii.  278. 
V.  Chiles,  i.  659. 

V.  Cincinnati  Type  Foundry,  iii 
265. 


Ixviii 


TABLE   OF   CASES   CITED. 


Jones  V.  Clark,  i.  561,  565. 
V.  Conile,  ii.  94,  245. 
V.  Crane,  i.  644. 
V.  Crawford,  iii.  276. 
V.  Davies,  i.  554. 
V.  Devore,  i.  255. 
V.  Doe,  ii.  10. 
V.  DouKherty,  ii.  523. 
V.  Felch,  1.  51U. 
V.  Flint,  i.  11;  iii.  346. 
V.  Froman,  iii.  219. 
V.  Harraden,  i.  661. 
V.  Hill,  i.  160. 
V.  Hoar,  i.  154. 
V.  Hockman,  iii.  136. 
V.  Jenkins,  ii.  346. 
y.  Jones,  i.  286,  590;  ii.258. 
V.  King,  iii.  479. 
V.  Langhton,  ii.  600. 
V.  Mafiet,  ii.  508. 
V.  Marahle,  iii.  16. 
V.  Marsh,  i.  609. 
V.  Miller,  ii.  604. 
V.  Monroe,  iii.  329. 
V.  Myrick,  ii.  203. 
V.  Obenchain,  i.  333. 
V.  Patterson,  i.  280,  333. 
V.  Percival,  ii.  338. 
V.  Perry,  iii.  211,  214,  218. 
V.  Reed,  i.  481. 
V.  Reynolds,  i.  451,  452. 
V.  Richardson,  ii.  157. 
V.  Roe,  ii.  15,  681,  682,  701,  714, 

738. 
V.  St.  John,  ii.  258. 
V.  Say  &  Seal,  ii.  467. 
V.  Scott,  i.  23. 
17.  Sherrard,  i.  124  ;  ii.  .214. 
V.  Smith,  ii.  148.  525. 
V.  Sothoron,  ii.  726. 
V.  Stanton,  i.  686. 
r.  Taylor,  iii.  210. 
V.  Thomas,  i.  138;  ii.  136. 
V.  Tipton,  i.  595. 
V.  Todd,  i.  246. 
V.  Walker,  ii.  10. 
V.  Weathersbee,  i.  647,  658. 
V.  Westconib,  ii.  689. 
V.  Whitehead,  i.  145. 
V.  Wood,  ii.  0G5. 
Jones's  case,  i.  558. 

Appeal,  i.  670. 
Joplin  V.  Johnson,  i.  561. 
Jordon  v.  Fenno,  ii.  50. 

V.  Goodman,  i.  417,  427. 
V.  Roa'jh,  i.  112 ;  ii.  734,  735. 
V.  Staples,  i.  575,  577. 
V.  Smith,  ii.  187. 
V.  Stevens,  ii.  453 ;  iii.  83,  244 
375,  377. 
Joslin  V.  Wyraan,  ii.  150,  188,  189,  191 

260. 
Journeay  v.  Brackley,  i.  503,  504,  521 

524. 
Joy  V.  Adams,  ii.  187. 


Joyce  V.  Williams,  iii.  88. 
Joyner  v.  Vincent,  ii.  108. 
Judevin  v.  Goodrich,  iii.  277. 
Judkins  v.  Judkins,  i.  079. 
Judson  V.  tiibbons,  ii.  508,  5S0. 

V.  Sierra,  iii.  259. 
Jumel  V.  Juniel,  ii.  206,  217;  iii.  328. 
Junction  R.  R.  v.  Harpold,  iii.  76. 

I'.  Harris,  i.  180,  182. 


Kabley  v.  Worcester  Gas  Co.,  i.  452. 
Kain  v.  Hoxie,  i.  498,  503,  509, 510, 517. 
Kaler  v.  Beaman,  ii.  337. 
Kane  County  v.  Harrington,  i.  567. 
Kane  v.  Bloodgood,  ii.  492,  493. 
V.  Sanger,  iii.  470. 
V.  Vandenburgh,  i.  160. 
Kannady  i\  McC'arron,  ii.  102,  110. 
Karker's  Appeal,  ii.  697. 
KarmuUer  v.  Krotz,  i.  52  ;  iii.  384,  442. 
Karnes  i'.  Lloyd,  ii.  106. 
Kastor  v.  Newhouse,  i.  539. 
Kauffelt  V.  Bower,  ii.  84,  89. 
Kavanagh  v.  Gudge,  i.  622. 
Kay  V.  Scates,  ii.  466,  467,  696,  706. 

V.  Penn.  R.  R.,  i.  630. 
Kean  v.  Hoffecker,  ii.  713. 

V.  Roe,  iii.  522. 
Kean's  case,  iii.  538. 
Kearney  v.  Macomb,  iii.  258. 
V.  Post,  499,  511. 
V.  Taylor,  iii.  216. 
Kearsing  v.  Kilian,  iii.  307. 
Keates  i>.  Hugo,  ii.  346. 
Keating  v.  Condon,  i.  579. 
Keay  v.  Goodwin,  i.  517,  518,  658,  685. 
Keech  v.  Hall,  ii.  101,  174. 
Keeler  v.  Eastman,  i.  141,  142,  J.45. 
V.  Tatnell,  i.  249. 
V.  Vantuvle,  iii.  78. 
V.  Wood,'  iii.  436,  443. 
Keen's  Appeal,  ii.  724 ;  iii.  382. 
Keene  v.  Houghton,  iii.  225. 

V.  Sanger,  iii.  450. 
Keichline  v.  Keicliline,  iii.  133,  326. 
Keisel  v.  Earnest,  i.  662. 
Keith  V.  Horner,  ii..85,  87.  • 

V.  Purvis,  ii.  479. 
V.  Trapier,  i.  207,  296. 
Keller  v.  Michael,  i.  256. 
Kelleran  V.  Brown,  ii.  53. 
Kellersberger  v.  Foresman,  i.  535. 

V.  Kopp,  i.  406. 
Kelley  v.  Austin,  i.  23. 

V.  Jenness,  ii.  475  ;  iii.  110,  120. 
I'.  Weston,  i.  573,  576. 
Kellogg  V.  Ames,  ii.  132,  188. 
^  V.  Blair,  iii.  528. 
V.  Inger.<ol,  iii.  462. 
V.  Loomis,  iii.  133. 
V.  Maliu,  iii.  458. 
V.  Piatt,  iii.  474. 


TABLE   OF    CASES    CITED. 


Ixix 


Kellogg  V.  Rand,  ii.  203. 

V.  Robinson,  iii.  462,  465,  469, 

470. 
V.  Rockwell,  ii.  224. 
V.  Smith,  iii.  87,  409. 
Kellum  V.  Smith,  ii.  478.  479. 
V.  Baker,  i.  359. 
V.  Greenfield,  iii.  48. 
V.  Johnson,  ii.  477. 
V.  Payne,  ii.  86. 
V.  Thompson,  ii.  44,  54,  56. 
V.  Waite,  i.  585,  587,  612. 
Kelsey  v.  Abbott,  iii.  226. 
V.  Hardy,  iii.  14. 
V.  Ward,  492. 
Kemp  V,  Derrett,  i.  598. 
•  V.  Earp,  ii.  60. 
V.  Holland,  i.  325. 
V.  Kemp,  i.  384. 
V.  Tliorp,  iii.  191. 
Kempe  v.  Goodall,  i.  558. 
Kendal  v.  Garland,  i.  460,  520. 
V.  Clark,  i.  394. 
V.  Lawrence,  i.  456 ;  iii.  249. 
V.  Mann,  ii.  480. 
Kennebec  Purchase  v.  Laboree,  iii.  156. 
V.  Tiffany,  iii.  409, 

429. 
V.  Springer,  iii.  148, 
152. 
Kennedy,  in  re,  i.  344. 

V.  Fury,  ii.  520. 
V.  Kennedy,  i.  262. 
V.  McCartney,  iii.  190. 
V.  Mills,  i.  324,  325. 
V.  Nedrow,  i.  323,  324. 
V.  Nortlirup,  iii.  325. 
V.  Strong,  ii.  491. 
Kennedy's  Appeal,  i.  645. 
Kennerly  v.  Missouri  Ins.  Co.,  i.  190. 
Kennett  v.  Plummer,  ii.  106,  133. 
Kenniston  v.  Leighton,  ii.  428. 
Kensington  v.  Bouverie,  i.  123. 
Kent  V.  Agard,  i.  419. 

V.  Hartpooie,  i.  178. 

V.  Kent,  i.  631. 

V.  Maliaffey,  iii.  536. 

V.  Waite,  ii.  304,  331,  368 ;  iii.  53, 

387. 
V.  Welch,  iii.  484,  485. 
Kenton  v.  Spencer,  ii.  252. 
Kentworthy  i-.  TuUis,  iii.  367. 
Kenyon  v.  Nichols,  ii.  303,  314. 

V.  Shriek,  ii.  172. 
Keppell  V.  Bailey,  i.  501 ;  ii.  284,  287. 
Kepple's  Appeal,  ii.  605. 
Kercheval  v.  Triplett,  iii.  112. 
Kerley  v.  Kerley,  i.  381,  387. 
Kernan  v.  Griffitli,  iii.  204. 
Kernochan  v.  New  York  Bowery  Ins. 

Co.,  ii.  231. 
Kerns  v.  Swope,  iii.  319. 
Kerr,  Matter  of,  ii.  296. 
V.  Day,  i.  497. 
V.  Freeman,  iii.  359. 


Kerr  v.  Gilmore,  ii.  59,  61. 

V.  Moore,  iii.  187. 
Kerry  v.  Derrick,  iii.  529. 
Kershaw   v.  Thompson,   ii.   239,   240; 

iii.  219. 
Kessler  v.  State,  iii.  319. 
Kester  v.  Stark,  i.  683. 
Ketchum  v.  Jauncey,  ii.  151. 

V.  Walsworth,  i.  672. 
Ketsey's  case,  i.  462. 
Key  V.  McClary,  ii.  50,  51. 
Keyes  v.  Bines,  i.  364. 

V.  Hill,  i.  392,  591,  595. 
V.  Wood,  ii.  120,  121,  122. 
Keys  V.  Powell,  i.  491. 

V.  Test,  iii.  80. 
Keyse  v.  Powell,  i.  467. 
Keyser  v.  School  District,  i.  8. 
Kibby  v.  Chitwood,  iii.  213,  218. 
Kidd  V.  Dennison,  i.  131,  141,  142. 

V.  Temple,  ii.  104. 
Kiddall  v.  Trimble,  i.  277. 
Kidder  v.  George,  iii.  461. 
Kieffer  v.  Imhoff,  ii.  314. 
Kier  v.  Peterson,  i.  144,  145 
Kiester  v.  Miller,  i.  547. 
Kiffhly  V.  Bulkly,  i.  597. 
Kiiborne  v.  Robbins,  ii.  117,  192,  216, 

245,  268. 
Kilgour  V.  Crawford,  i.  683. 
V.  Haswell,  iii.  388. 
Kilpatrick  v.  Kilpatrick,  ii.  88. 
Kimball  v.  Blaisdell,  iii.  96,   107,   110, 
117,  466,  475. 
V.  Cocheco  R.  R.,  ii.  307. 
V.  Eaton,  iii.  281. 
V.  Johnson,  iii.  315. 
V.  Kenosha,  iii.  421. 
V.  Kimball,  i.  236,  237. 
V.  Ladd,  iii.  159. 
V.  Lockvvood,  i.  509,  561,  562; 

ii.  106,  136,  138. 
V.  Lohmas,  iii.  156. 
V.  Myers,  ii.  47. 
V.  Pike,  i.  518. 
V.  Rowland,  i;  481,  606,  611. 
V.  Schoff,  iii.  70,  109. 
V.  Sumner,  iii  6. 
V.  Temple,  iii.  385,  475. 
V.  Walker,  iii.  376,  378. 
Kime  v.  Brooks,  iii.  280. 
Kimpton  v.  Walker,  i.  492,  493,  504. 
Kincaid  v.  Brittain,  iii.  449,  453,  456, 
463,  466,  474, 
494,  496. 
V.  Meadows,  iii.  329. 
Kincaid's  Appeal,  i.  31. 
Kincheloe  v.  Tracewells,  iii.  52. 
King  V.  Aldborough,  i.  508. 
V.  Anderson,  i.  518. 
V.  Arden,  i.  627. 
V.  Dickerman,  i.  597. 
V.  Donnelly,  ii.  508. 
V.  Gilson,  iii.   109,  247,  318,  449, 
479,  480,  491,  493. 


Ixx 


TABLE   OF   CASES   CITED. 


King  V.  Hawkins,  iii.  210. 
V.  Horndon,  i.  629. 
V.  King,  ii.  49,  132,  198. 
V.  Lawson,  i.  582. 
V.  Longnor,  iii.  280. 
V.  McVickar,  ii.  211. 
V.  Newman,  ii.  51. 
V.  Oakley,  i.  459. 
V.  Pliillips,  i.  658. 
V.  Reed,  i.  684. 
V.  Smith,  iii.  147. 
V.  Stacey,  iii.  106. 
V.  State  Ins.  Co.,  ii.  230,  231,  234. 
V.  Stetson,  i.  219,  220. 
V.  Tliompson,  iii.  236. 
i;.  Wilson,  i.  511,  512. 
V.  Withers,  ii.  713. 
V.  Yarborough,  iii.  57,  59. 
King,  The,  v.  Wilson,  i.  511,  512. 
Kingdon  v.  Bridges,  ii.  473,  475. 
V.  Nottle,  iii.  449,  454. 
Kingman  v.  Sparrow,  i.  240;  iii.  159. 
Kingsbury  v.  I3urnside,  iii.  288,  293. 

V.  Wild,  iii.  210. 
King's  Chapel  v.  Pelliam,  ii.  12. 
Kingsland  v.  Clark,  i.  527. 
Kingsley  v.  Holbrook,  i.  11,  14 ;  ii.  52, 
446 ;  iii.  275,  346. 
V.  Kingsley,  i.  354,  382. 
ffingsmill  V.  Millard,  i.  557. 
Kinna  v.  Smith,  ii.  97, 118,  131,  141,  257. 
Kinne  v.  Kinne,  iii.  512. 
Kinnear  v.  Lowell,  ii.  217. 
Kinnebrevv  v.  Kinnebrew,  iii.  369. 
Kinney  v.  Ensign,  ii.  187. 

V.  Watts,  i.  487,  488. 
Kinnier  v.  Rogers,  ii.  656. 
Kinsler  v.  Clark,  ii.  446. 
Kinsley  v.  Abbott,  i.  671. 

V.  Ames,  617  ;  ii.  68,76. 
Kinsman  v.  Loomis,   iii.   99,    103,   112, 

118,  162. 
Kip  V.  Bank  of  New  York,  ii.  491. 
V.  Deniston,  ii.  522. 
V.  Norton,  iii.  88. 
Kirby  v.  Market  Association,  i.  539. 
Kirk  V.  Dean,  i.  246,  2-50,  255. 

V.  King,  iii.  64. 
Kirkham  r.  Sharp,  ii.  333. 
Kirkpatrick  v.  Kirkpatrick,  ii.  725,  726. 

V.  White,  i.  402. 
Kirtland  v.  Pounsett,  i.  594. 
Kitchell  V.  Burgwin,  i.   347,   355,   408, 

421. 
Kitchen  v.  Pridgen,  i.  603. 
Kittle  V.  Van  Dyck,  i.  219 ;  ii.  258. 
Kittredge  v.  McLaugldin,  ii.  235. 
V.  Peaslee,  i.  591. 
V.  Woods,  i.  10,  19,  134 ;  iii. 
392. 
Klappner  v.  Lavertv,  ii.  602,  604,  606, 

698. 
Klapworth  i'.  Dressier,  ii.  210,  215. 
KlJnck  V.  Keckley,  i.  221,  229. 
V.  Price,  ii.  51. 


Kline  v.  Beebe,  i.  174, 458 ;  iii.  250,  251. 

V.  Jacobs,  i.  662. 
Kuapp  V.  Goss,  i.  370. 

V.  Windsor,  i.  .3.32  ;  iii.  18. 
Knaub  v.  Esseck,  ii.  101. 
Kneedler  v.  Sharp,  iii.  450. 
Kne])por  v.  Kurtz,  iii.  468. 
Knetzur  v.  Bradstreet,  ii.  248. 
Knight  V.  Bell,  i.  .3.30. 

V.  Bennett,  i.  602. 
V.  Clements,  iii.  246. 
V.  Dyer,  ii.  61 ;  iii.  310,  353,  428. 
V.  Mains,  i.  235. 
V.  Moore,  ii.  .334. 
V.  Mosely,  i.  144. 
V.  Weatherwax,  ii.  530. 
Knight's  case,  i.  438. 
Knotts  V.  Hydrick,  i.  14. 
Knouff  V.  Thompson,  iii.  78,  79,  82. 
Knowles  v.  Hall,  i.  475,  620. 

V.  Lawton,  ii.  196,  211,  254. 
V.  Rabhn,  ii.  212. 
V.  Toothaker,  iii.  88,  409. 
Knowlton  v.  Smith,  iii.  88. 

V.  Walker,  ii.  35,  182. 
Knox  V.  Hook,  iii.  162. 

V.  Gye,  ii.  94. 
Koch  V.  Briggs,  u.  79,  80,  262 ;  iii.  258. 
Koehler  v.  Black  River,   &c.    Co.,  iii. 

273. 
Koeuig's  Appeal,  i.  83. 
Kortright  v.  Cady,  ii.  103, 106, 108, 122, 

16.5,  173,  230. 
Kortz  V.  Carpenter,  iii.  468. 
Kowland  v.  Updike,  iii.  143. 
Kradler  v.  Sharp,  iii.  459. 
Kraemer  v.  Revalk,  i.  407. 
Kramer  v.  Cook,  i.  468,  535,  538. 

V.  Farmers'  &  Mechanics'  Bank, 

ii.  152. 
V.  Rebman,  ii.  239,  250. 
Kresin  v.  Mace,  i.  349,  359. 
Krevit  v.  Meyer,  i.  623. 
Kuhn  V.  Kaler,  i.  209. 

V.  Newman,  ii.  467. 
V.  Webster,  iii.  529. 
Kiimler  v.  Ferguson,  iii.  376. 
Knuckle  v.  Wyiiick,  i.  504. 
Kunkle  v.  Wolfersberger,  ii.  58,  59,  61, 

137. 
Kurtz  V.  Hibner,  i.  678. 
Kurz  V.  Brusch,  i.  3.56,  371. 
Kutter  V.  Smith,  i.  5,  437. 
Kutz  V.  McCune,  iii.  461,  462,  463. 
Kyle  V.  Kavenagh,  iii.  357. 
Kyles  t'.  Tait,  ii.  93. 


Labarer  v.  Carleton,  ii.  2,  6 ;  iii.  368. 
Lacey,  ex  parte,  ii.  484. 
M.  Arnett,  i.  635. 
Lackey  v.  Holbrook,  i.  622 ;  ii.  100. 


TABLE    OP    CASES    CITED. 


Ixxi 


Lackman  v.  Wood,  iii.  71,  126. 
Lacon  v.  Higgins,  i.  215. 
Ladd  V.  Ladd,  ii.  651,  654,  655. 

V.  Perley,  i.  680. 
Ladue  v.  Detroit,  &c.,  R.  R.,  ii.  103,  118, 

122,  .129,  154,  156. 
La  Farge  v.  Herter,  ii.  216. 
La  Farge  Ins.  Co.  v.  Bell,  ii.  149,  206, 

211. 
Lafarge  v.  Mansfield,  446,  527. 
Laffan  v.  Naglee,  i.  497. 
Laflin  v.  Griffith,  ii.  157. 
La  Frombois  v.  Jackson,  iii.  139,  150, 

158,  161. 
Lagow  V.  Badollet,  ii.  91,  92. 
La  Grange  v.  L'Amoreaux,  ii.  530. 
Laguerenne  v.  Dougherty,  i.  603. 
Laing  v.  Cunningham,  i.  397. 
Lajoye  r.  Primm,  iii.  90. 
Lake  v.  Craddock,  i.  667. 
V.  Gray,  iii.  322,  375. 
V.  Lake,  ii.  432. 
Lakin  v.  Lakin,  i.  243. 
Lallande  v.  Wentz,  iii.  461. 
Lamar  v.  Scott,  i.  190,  .303. 
Lamb  v.  Crossland,  ii.  320,  329,  332. 

V.  Danforth,  i.  665  ;  iii.  462,  474, 

495,  497. 
V.  Foss,  ii.  112.      • 
V.  Mason,  404,  428. 
V.  Shays,  i.  397,  411. 
Lambden  v.  Sharp,  iii.  272. 
Lambert  v.  Blunienthal,  i.  681. 

V.  Carr,  iii.  206. 
Lambeth  v.  Warner,  i.  309. 
Lampet's  case,  ii.  626,  724,  727  ;  iii.  348. 
Lamplugh  v.  Lamplugli,  ii.  432. 
Lampraan  v.  Milks,  ii.  317. 
Lamprey  v.  Nudd,  ii.  Ill,  118. 
Lamson  v.  Falls,  ii.  2.58. 

V.  Drake,  ii.  212,  225. 
Lancaster  v.  Dolan,  ii.  467. 

V.  Eve,  i.  8. 
Lancaster  Bank  v.  Myley,  i.  668. 
Lancaster  Co.  Bank  v.  Stauffer,  i.  179, 

181. 
Landers  v.  Bolton,  iii.  25-5,  322,  327. 
Landes  v.  Brant,  iii.  309. 
Landon  v.  Pratt,  i.  5,  28. 
Lane  v.  Bommelman,  iii.  226. 
V.  Davis,  ii.  123. 
V.  Dickerson,  ii.  51. 
V.  Dighton,  ii.  484. 
V.  Dorman,  iii.  211,  214,  215. 
V.  Gould,  iii.  148,  151,  152. 
V.  Harold,  i.  659. 
V.  Hitchcock,  ii.  135. 
V.  King,  i.  138 ;  ii.  136. 
V.  Shears,  ii.  45. 
V.  Thompson,  i.  1-54  ;  iii.  384. 
V.  Tyler,  i.  666. 
Lanfair  v.  Lanfair,  ii.  41,  43,  55. 
Lang  V.  Waring,  i.  667,  668. 

V.  Whidden,  i   455. 
Langdon  v.  Keith,  ii.  123. 


Langdon  v.  Paul,  ii.  135,  242. 
V.  Poor,  iii.  224,  230. 
V.  Potter,  i.  58 ;  iii.  125. 
V.  Strong,  ii.  540 ;  iii.  218. 
Langford  v.  Selmes,  i.  511,  5lS;  ii.  273. 
Langham  v.  Nenny,  ii.  649. 
Langstaflfe  v.  Fenwick,  ii.  62,  234. 
Langston,  ex  parte,  ii.  82. 
Langworthy  v.  Myers,  iii.  150. 
Lanoy  v.  Athol,  ii.  198,  219. 
Lansing  v.  Goelet,  ii.  238,  242. 

V.  Stone,  i.  151,  543. 
Large's  case,  i.  80. 
Larkin  v.  Avery,  i.  599,  614. 
Larman  v.  Huey,  i.  658. 
Larned  v.  Bridge,  iii.  529. 

V.  Clark,  i.  600  ;  ii.  169. 
V.  Larned,  ii.  342. 
Larrabee  v.  Lumbert,  ii.  124,  234. 
Larrowe  v.  Beam,  i.  291. 
Larson  v.  Reynolds,  i.  410  ;  ii.  253. 
Lasaler  v.  Holbrook,  ii.  3-59,  360,  861. 
Lassell  v.  Reed,  i.  19,  577. 
Lassen  c.  Vance,  i.  220,  406. 
Latham  v.  Morgan,  iii.  490. 
Lathrop  v.  Com.  Bank,  i.  76. 

V.  Singer,  i.  401. 
Latrobe  v.  Tiernan,  ii.  521,  522. 
Lauck's  Appeal,  i..  402. 
Laverty  v.  Moore,  iii.  77,  85. 
Law  V.  Hempstead,  iii.  398. 
Lawler  v.  Clafliii,  ii.  264. 
Lawley  v.  Hooper,  i.  49. 
Lawrence  v.  Brown,  i.  305,  306. 
V.  Cornell,  ii.  200. 
V.  Farmers'  Loan  &  T.  Co., 

ii.  75. 
V.  Fletcher,  ii.  158,  242. 
I).  Fox,  ii.  209;  iii.  313. 
V.  French,  i.  527,  528,  529, 

530,  533,  534. 
V.  Hebbard,  iii.  525. 
V.  Kete,  iii.  502. 
V.  Knight,  i.  478. 
V.  Miller,  i.  295,  563. 
V.  Pitt,  iii.  14. 
V.  Senter,  iii.  469. 
V.  Stratton,  ii.   62,  117,  188, 

242  ;  iii.  300. 
V.  Tucker,  ii.  151. 
Lawry  v.  Williams,  iii.  109. 
Lawson  v.  Morton,  i.  205. 
Lawton  v.  Adams,  i.  659. 
V.  Bruce,  i.  371. 
I'.  Buckingham,  iii.  375,  492. 
V.  Lawton,  i.  28. 
V.  Sager,  iii.  299. 
V.  Salmon,  i.  30. 
V.  Ward,  ii.  335. 
Lawver  v.  Slingerland,  i.  414  ;  iii.  255. 
Lay  V.  Gibbons,  i.  410. 
Layman  v.  Thorp,  i.  619. 
Layton  v.  Butler,  i.  282,  284. 
Lasell  V.  Lasell,  i.  3-58,  372,  424 
Lea  V.  Netherton,  i.  571. 


Ixxii 


TABLE   OF    CASES    CITED. 


Lea  r.  Polk  Co.  Copper  Co.,  iii.  317. 
Leader  v.  Honiewooil,  i.  29,  437. 
Leake  v.  Robinson,  ii.  728. 
Lear  v.  I^eirfjett,  i.  472. 
Learned  y.Y'utler,  i.  247,  248,  300;  iii. 
257. 
V.  Riley,  iii.  315. 
Leary  v.  Durham,  iii.  466. 
Leavens  v.  Sutler,  ii.  508. 
Leavitt  v.  Fletcher,  i.  491,  505,  506,  507, 
535. 
V.  Lamprey,  i.  247, 260, 281,  305. 
V.  Leavitt,  i.  581  ;  ii.  424. 
V.  PeU,  ii.  654,  655. 
V.  Pratt,  ii.  131. 
V.  Towle,  iii.  390,  441. 
Leblanc  v,  Ludrique,  iii.  198. 

V.  St.  Germain,  i.  394. 
Lecompt  v.  Wash,  i.  24-3. 
Ledbetter  v.  Gash,  i.  677. 
Ledyard  v.  Butler,  ii.  161. 
V.  Chapin,  ii.  187. 
V.  Ten  Eyck,  iii.  410,  418. 
Lee  V.  Bank  of  U.  States,  341. 
V.  Dean,  iii.  493. 
V.  Evans,  ii.  62. 
V.  Fox,  i.  686. 

V.  Kingsbury,  i.  417;  ii.  249,  266. 
V.  Lee,  ii.  727. 
V.  Lindell,  i.  199. 
V.  Mass.  Ins.  Co.,  iii.  282. 
V.  Miller,  i.  358,  372.      . 
V.  Risdon,  i.  28. 
V.  Stone,  ii.  150. 
Leech  v.  Leech,  iii.  247. 
Leeds  v.  Cameron,  ii.  151. 
V.  Chatham,  i.  536. 
V.  Wakefield,  ii.  663,  667. 
Lees  V.  Mosley,  ii.  603. 
Lefavour  v.  Homan,  iii.  143. 
Lefever's  Appeal,  i.  670. 
Lefevre  v.  Murdock,  iii.  248,  253. 
Leffingwell  v.  Elliott,  iii.  498. 
Leffler  v.  Armstrong,  ii.  80. 
Leger  v.  Doyle,  iii.  320. 
Leggett  V.  Bullock,  ii.  145. 

V.  Steele,  i.  291. 
Lehman  v.  Kellerman,  i.  77. 
Leighton  i\  Leigliton,  i.  160. 
V.  Perkins,  iii.  473. 
Leishman  v.  White,  i.  533,  534,  596. 
Lekeux  v.  Nash,  i.  503. 
Leland  v.  Loring,  ii.  241. 
Lennig's  Estate,  ii.  102,  209. 
Lennon  v.  Porter,  ii.  269. 
Lent  V.  Shear,  ii.  185. 
Lentz  V.  Victor,  ii.  -381. 
Leonard  v.  Leonard,  i.  287  ;  iii.  145. 
V.  Storer,  i.  540. 
V.  White,  iii.  387,  394. 
Lerncd  i\  Bridge,  ii.  721. 
V.  Morrill,  iii.  409. 
Lerow  v.  Wilmarth,  iii.  3.35. 
Leshey  v.  Gardner,  ii.  515. 
Lesley  v.  Randolph,  i.  601,  602,  603,  610. 


Leslie  v.  Marshall,  ii.  539,  541, 542,  545, 

685. 
Lestrach  v.  Barth,  iii.  317. 
Lethieullier  v.  Tracy,  ii.  571,  578. 
Leventhorpe  v.  Ashbie,  ii.  723. 
Levering  v.  Ileighe,  i.  322  ;  iii.  15. 

V.  Langle}',  i.  549. 
Levy  V.  Levy,  ii.  459,  532,  733;  iii.  513, 

516,  520,  522.  532. 
Lewes  v.  Ridge,  i.  477,  498. 
Lewis,  Matter  of,  iii.  09. 

V.  Baird,  ii.  507  ;  iii.  97,  319, 

V.  Beall,  ii.  427,  445. 

V.  Beattie,  iii.  422. 

I'.  Branthwaite,  i.  467. 

V.  Brewster,  iii.  373. 

V.  Campbell,  iii.  498. 

V.  Carstairs,  ii.  304. 

V.  Coxe,  i.   249,   250,    256  ;    iii. 

258. 
V.  De  Forest,  ii.  151. 
V.  James,  i.  205,  300. 
V.  Jones,  i.  146,  577. 
V.  Lewis,  i.  326 ;  ii.  394,  432  ;  ui. 

536. 
V.  Lyman,  i.  19,  577  ;  iii.  393. 
V.  Meserve,  i.  235. 
V.  Nangle,  ii.  258. 
V.  Pay^i,   i.  528,  530,  533,  534 ; 

iii.  247. 
V.  Scofield,  iii.  503. 
r.  Smith,  i.  251,  255,  304,  324, 

326  ;  ii.  239,  258,  259. 
V.  Waters,  ii.  569. 
V.  Willis,  i.  558. 
Lewis  St.,  Matter  of,  iii.  99. 
Libbey  v.  Toltbrd,  i.  538,  545. 
Lick  V.  O'Donnell,  i.  654. 
Liefe  v.  Saltingstone,  ii.  649. 
Lienow  v.  Ellis,  i.  522. 

V.  Ritchie,  i.  589. 
Lies  V.  De  Diablar,  i.  406,  421 ;  iii.  238. 
Liford's  case,  i.  11,  14,  136;  ii.  307  ;  iii. 

387. 
Liggins  V.  Inge,  i.  632,  639 ;  ii.  341,  342, 

350,  371,  372. 
Lightner  r.  Mooney,  iii.  321. 
LiUard  v.  Rucker,  iii.  323,  324. 
Lilly  V.  Palmer,  ii.  210. 

V.  Fifty  Associates,  i.  485. 
Lincoln   v.  Emerson,   ii.  114,  168;    iii. 
108. 
V.  Parsons,  ii.  50. 
V.  Purcell,  iii.  166. 
V.  White,  ii.  119. 
Lincoln  Bank  r.  Drummond,  ii.  16. 
Linden  v.  Hepburn,  i.  511,  512. 
Lindley  v.  Dakin,  i.  51. 
i\  Sharp,  ii.  50. 
Lindsay  v.  McCormack,  iii.  528. 

V.  Springer,  iii.  88. 
Lindsey  v.  Miller  iii.  159,  191,  192,  195. 
Line  v.  Stephenson,  iii.  485. 
Lines  v.  Darden,  ii.  468,  506. 
Lines'  Appeal,  i.  378. 


TABLE   OF   CASES   CITED. 


Ixxiii 


Lingan  v.  Carrol,  iii.  525. 
Linn  v.  Ross,  i.  535. 
Linsley  v.  St.  Clair,  ii.  476. 
Lintliicum  v.  Ray,  i.  58. 
Linton  v.  Hart,  i.  519. 

V.  Wilson,  i.  27. 
Linville  v.  Golding,  ii.  443. 
Linzee  v.  Mixter,  ii.  22. 
Lion  V.  Burtiss,  ii.  69-5,  696,  709. 
Lippencot  v.  Allendar,  ii.  293. 
Lippett  V.  Kelley,  i.  659  ;  iii.  405,  428. 
Liptrot  V.  Holmes,  ii.  495,  497. 
Lisbiirn  v.  Davies,  i.  556. 
Lisle  V.  Gray,  iii.  267. 
Litchfield  v.  Cudworth,  i.  181. 

V.  Ready,  ii.  138. 
Lithgow  V.  Kavenagh,  i.  86 ;   iii.  254, 

257. 
Little  V.  Downing,   iii.    136,    137,   152, 
165. 
V.  Gibson,  iii.  294. 
V.  Heaton,  i.  482. 
V.  Megguier,  iii.   152,   154,   155, 

319. 
V.  Palister,  i.  584  ;  ii.  742. 
V.  Pearson,  i.  592. 
Littleton  v.  Richardson,  iii.  472. 
Lively  v.  Ball,  i.  558. 
Livermore  v.  Aldrich,  ii.  479,  480. 

;;.  Maquokota,  iii.  73. 
Livezey  v.  Philadelphia,  i.  9. 
Livingston,  Matter  of,  ii.  5-30. 
V.  Farmer,  i.  621. 
V.  Haywood,  ii.  742. 
V.  Livingston,  ii.  478,    474, 

480. 
V.  Mayor,  iii.  99. 
V.  Newkirk,  ii.  198. 
V.  Peru   Iron   Co.,  iii.   277, 

330,  331. 
V.  Potts,  i.  548. 
V.  Prosens,  iii.  331. 
V.  Reynolds,  i.  130,  131, 144, 

161. 
V.  Story,  ii.  37. 
V.  Tanner,  i.  617. 
V.  Tonikins,  ii.  21. 
Llewellyn  v.  JeVsey,  iii.  401,  402. 
Lloyd  V.  Brooking,  ii.  631. 

V.  Carter,  ii.  480,  481. 
V.  Conover,  i.  199. 
V.  Cozens,  i.  512,  515,  607,  610. 
V.  Crispe,  i.  472. 
V.  Giddings,  iii.  292,  299. 
V.  Gordon,  i.  656,  686. 
V.  Jackson,  iii.  528. 
V.  Lyncli,  i.  686,  687 ;  ii.  480,  501. 
V.  Spillet,  ii.  393,  394,  472,  473. 
Loan,  &c.  Co.  v.  Drake,  i.  30. 
Loaring,  ex  parte,  ii.  90. 
Lobdell  V.  Ih.il,  i.  614. 

V.  Hays,  i.  206,  224 ;  iii.  6. 
Lock  V.  Fulford,  ii.  202,  203,  207. 
Locke  V.  Colman,  i.  466. 
V.  Palmer,  ii.  50. 


Locke  V.  Rowell,  i.  119,  389,  425. 
Lockerson  v.  Stillwell,  ii.  51,  58. 
Lockhart  v.  Hardy,  ii.  159,  198,  241. 
Lockwood  V.  Benedict,  ii.  254. 

V.  Lockwood,  i.  602,  614. 
V.  Sturdevant,    ii.    194;    iii. 
210,  454. 
Lockyer  v.  Savage,  ii.  9. 
Lodge  V.  Barnett,  iii.  403. 

V.  Furman,  ii.  50. 
Loffus  V.  Maw,  ii.  502. 
Logan  V.  Anderson,  i.  549;  ii.  220. 
V.  Bell,  ii.  638. 
V.  Herron,  i.  603,  610. 
London  v.  London,  i.  217. 
London,  City  of,  v.  Grey  me,  146. 
Long  V.  Dollarhide,  iii.  323. 
V.  Fitzsimmons,  i.  149. 
V.  Long,  iii.  272. 
V.  Mast,  iii.  142,  143, 
V.  Moler,  iii.  461,  463. 
V.  Ramsey,  iii.  275. 
V.  Steiger,  ii.  478. 
V.  Wliite,  i.  330. 
V.  Young,  iii.  137. 
Longbottom  v.  Berr3%  ii.  157. 
Longfellow  v.  Longfellow,  i.  565,  566, 

567. 
Longford  v.  Eyre,  ii.  655. 
Longwith  v.  Butler,  ii.  68,  69,  72,  15L 
Longworth  v.  Bank  of  U.  S.,  iii.  210. 

V.  Flagg,  ii.  248. 
Look  V.  Norton,  i.  58. 
Loonier  v.  Wheelwright,  ii.  196. 
Looniis  V.  Bedel,  iii.  474,  477. 
V.  Gerson,  i.  347,  396. 
V.  Wilbur,  i.  130. 
Lord  V.  Commrs.  of  Sidney,  iii.  420.  . 
V.  Ferguson,  i.  523. 
V.  Morris,  ii.  102,  185. 
Loring  v.  Baron,  i.  17  ;  ii.  365. 
V.  Bradley,  ii.  255. 
V.  Cooke,  ii.  150. 
V.  Croft,  i.  385. 
V.  Eliot,  ii.  562,  565,  567. 
V.  Marsh,  n.  661 ;  iii.  513,  514, 

521   540 
V.  Otis,  iii.  99,  470,  485. 
Lormah  v.  Benson,  iii.  342,  410. 
Lormore  v.  Campbell,  iii.  335. 
Losey  v.   Simpson,    ii.  247  ;     iii.    316, 

317. 
Lothrop  V.  Foster,  i.  247,  278. 
Loubat  V.  Nourse,  i.  201,  669,  670. 
Loud  V.  Darlincj,  iii.  329. 

V.  Lane,  li.  174,  194.  196. 
Loudon  V.  Warfield,  i.  161. 
Lougliram  v.  Ross,  i.  29 ;  iii.  474. 
Loundsbury  v.  Purdy,  ii.  532. 

V.  Snyder,  i.  529,  603. 
Love  V.  Wells,  iii.  75,  332. 
Loveacres  v.  Blight,  ii.  495. 
Lovell  V.  Smith,  ii.  341. 
Lovering  v.  Fogg,  ii.  54,  166. 
V.  Lovering,  i.  488. 


Ixxiv 


TABLE   OF   CASES   CITED. 


Levies'  case,  ii.  723. 
Low  V.  Allen,  ii.  185. 
V.  Henry,  ii.  48,  60. 
V.  Muniford,  i.  665. 
Lowe  V.  Emerson,  i.  566,  567,  568,  669. 
V.  Griffith,  i.  461. 
V.  Grinnan.'ii.  77,  81. 
V.  Maccubben,  iii.  16. 
V.  Miller,  i.  573. 
V.  Morgan,  ii.  256. 
V.  Weatherley,  iii.  376. 
Lowell  V.  Daniels,  iii.  71,  77,  106,  248. 
V.  Middlesex  Ins.  Co.,  ii.  93. 
V.  Kobinson,  iii.  416. 
Lowndes  v.  (/liisholm,  ii.  2'28. 
Lowry  v.  Muldrow,  ii.  728. 
V.  McKinney,  ii.  90. 
V.  Steele,  i.  175. 
V.  Tew,  iii.  235. 
Lowther  v.  Carlton,  iii.  339. 
Lozier  v.  New  York  Cent.  R.  R.,  iii.  422. 
Lucas  V.  Byrne,  ii.  59. 

V.  Sawyer,  i.  187,  190,  192. 
Luce  V.  Carley,  ii.  322 ;  iii.  411. 

V.  Stubbs,  i.  278,  279. 
Luch's  Appeal,  ii.  84. 
Luckett  V.  Townshend,  ii.  60. 
Luddington  v.  Kime,  ii.  576. 
Ludlow  V.  Cooper,  i.  668. 

V.  New  York  &  Harletn  R.  R., 
ii.  7,  12,  17,  20,  23. 
Luffboro  V.  Parker,  iii.  326. 
Lufkin  V.  Curtis,  i.  247  ;  iii.  257. 
Lumpkin  v.  Eason,  i.  395. 
Lund  V.  Lund,  ii.  34,  43,  44,  52,  54. 
V.  Parker,  iii.  126. 
V.  Woods,  i.  303. 
Luning  v.  Brady,  ii.  187. 
Lunsford  v.  Turner,  i.  561,  562. 
Lunt  V.  Holland,  iii.  411,  429. 
Lupton  r.  Lupton,  ii.  198. 
Luse  V.  Clark,  iii.  198. 
Lush  V.  Druse,  iii.  402. 
Luther  v.  Winnisiramet  Co.,  ii.  330,  355 ; 

iii.  53. 
Luttrel's  case,  ii.  327,  345,  352,  373. 
Lutwick  V.  Milton,  iii.  356. 
Lux  V.  Hoff,  i.  672. 
Luxford  V.  Cheeke,  ii.  575. 
Lyde  v.  Russell,  i.  28. 
Lydston  v.  Powell,  ii.  76. 
Lyford  v.  Ross,  ii.  116. 

V.  Thurston,  ii.  475,  485,  491. 
Lyle  V.  Richards,  i.  36,  111. 
Lyles  V.  Lyles,  i.  662. 
Lyman  v.  Arnold,  iii.  385. 
V.  Hale,  i.  12. 
V.  Lyman,  ii.  206. 
Lynch  v.  Allen,  iii.  410. 

V.  Livingston,  iii.  315,  379. 
Lynde  v.  Hough,  i.  473,  508. 

V.  Rowe,  i.  23  :  ii.  136,  167. 
Lynn's  Appeal,  i.  141,  144. 
Lyon  V.  Kain,  i.  246;  iii.  18,  255,  256. 
V.  Mcllvain,  ii.  194,  196 ;  iii.  281. 


Lyon  V.  Parker,  ii.  287. 

V.  Reed,  i.  548,  552. 
Lyster  v.  DoUand,  ii.  163. 


M. 


M.  &  I.  Plank  Road  Co.  v.  Stevens,  iii. 

299. 
Macaulay  v.  Dismal  Swamp,  i.  209. 
MacGregor  v.  Gardner,  ii.  476,  524, 663. 
Mack  V.  Grover,  ii.  253. 
Mackay  v.  Bloodgood,  iii.  272. 
Mackentile  v.  Savoy,  iii.  405. 
Mackey  ?;.  Proctor,  i.  175. 
Macknet  v.  Macknet,  iii.  525. 
Mackreth  v.  Symmons,  ii.  85,  91,  93. 
Mackubin  v.  Whetcroft,  i.  481. 
Macomber  v.  Cambridge   Ins.  Co.,  ii. 

233. 
Macumber  v.  Bradley,  ii.  604. 
Maddox  v.  Goddard,  i.  659  ;  iii.  396. 

V.  White,  i.  546. 
Madigan  v.  McCarthy,  i.  6,  7,  148. 
Maeder  v.  Carondelet,  i.  488. 
Matfitt  V.  Rynd,  ii.  51,  151. 
Magaw  V.  Lambert,  i.  536. 
Magee  v.  Magee,  i.  192,  396;  li.  471; 
iii.  128,  136,  139,  141. 
V.  Millon,  i.  2-55. 
V.  Young,  i.  192. 
Maggort  V.  Hansbarger,  i.  536. 
Magill  V.  Brown,  iii.  516. 

V.  Hinsdale,  i.  561 ;  iii.  279. 
Magniac  v.  Thomjjson,  ii.  468. 
Magnolia   Steamboat  v.   Marshall,  iii. 

414. 
Magon  V.  Chadwick,  ii.  359. 
Magoon  v.  Harris,  iii.  385. 
Magruder  v.  Offutt,  ii.  255. 

V.  Peter,  i.  459. 
Maguire  v.  Maguire,  i.  192. 
Mahan  v.  Brown,  ii.  344,  347. 
Mahoney  v.  Van  Winkle,  iii.  82. 
Mahorner  v.  Harrison,  ii.  478. 
Maigley  v.  Hauer,  ii.  394. 
Main  v.  Feathers,  i.  499. 
Major  V.  Deer,  ii.  514. 
Makepeace  i\  Bancroft,  iii.  409. 
Malim  v.  Keighley,  ii.  716. 
Mallack  v.  Galton,  ii.  2-59. 
Mallett  V.  Page,  iii.  290,  292. 
Mallony  v.  Horon,  i.  250,  251 ;  iii.  74. 
Mallory  v.  Hitchcock,  ii.  194. 

V.  Stodder,  iii.  318,  321. 
Malone  v.  Majors,  i.  325. 

V.  McLaurin,  i.  164,  173. 
Maloney  v.  Fortune,  ii.  267. 
Maltorncr  ),'.  Dimmick,  iii.  163. 
Manchester  v.  Doddridge,  i.  586,  590, 
650  ;  iii.  144. 
V.  Durfee,  ii.  606. 
r.  Hough,  i.  335. 


TABLE   OF   CASES   CITED. 


Ixxv 


Manderson  v.  Lukens,  ii.  545,  547,  551, 

688. 
Mandeville  v.  Welch,  ii.  82,  83. 
Manhattan  Co.  v.  Evertson,  i.  250. 
Manice  v.  Manice,  ii.  579,  734. 
Maiiier  v.  Myers,  ii.  330. 
Manly  v.  Pettee,  i.  685. 

V.  Slason,  ii.  87,  88,  90,  98. 
Mann  v.  Earle,  ii.  269. 

V.  Edson,  i.  214,  234. 
V.  Hughes,  i.  588. 
V.  Pearson,  iii.  402,  491. 
V.  Rogers,  i.  354,  367. 
V.  Thayer,  ii.  259. 
Manning  v.  Dove,  i.  362,  378,  402. 

V.  Laboree,  i.  249,  259,   280, 

281,  291. 
V.  Markel,  ii.  173. 
V.  Smith,   ii.   324,    343,    370, 

374  ;  iii.  438. 
V.  Wasdale,  ii.  300,  349. 
Mannf'ng's  case,  i.  176  ;  ii.  723,  724. 
Mans  V.  Worthing,  iii.  242. 
Mansell's  Estate,  ii.  198. 
Manser's  case,  iii.  281. 
Mansfield  v-  JNIcIntyre,  i.  191. 

V.  Mansfield,  ii.  663,  664. 
V.  Pembroke,  i.  285. 
Manson  v.  Blake,  iii.  410,  416. 
Mantle  v.  Wellington,  i.  461. 
Mantz  V.  Buchanan,  i.  292. 
Manufacturers'  Bank  v.  Bank  of  Peun., 

ii.  61. 
Maple  V.  Kussart,  iii.  83,  120. 
Maples  V.  Millon,  i.  12 ;  ii.  167. 
Mapps  V.  Sharp,  ii.  75. 
Mara  v.  Pierce,  iii.  317. 
March  v.  Barrier,  i.  31. 
Marcy  v.  Marcy,  iii.  377. 
Marden  v.  Babcock,  ii.  54. 

V.  Chase,  ii.  417,  441 ;  iii.  372, 
373,  379. 
Marine  Bank  v.  International  Bank,  ii. 

123. 
Mariner  v.  Crocker,  i.  509. 

V.  Saunders,  iii.  255. 
Mark  v.  State,  i.  423. 

V.  Patchen,  i.  488,  489. 
Markell  v.  Eichelberger,  ii.  187. 
Marker  v.  Marker,  i.  155. 
Markham  v.  Merritt,   i.  201,  202,  246, 

268;  iii.  252. 
Markland  v.  Crump,  i.  499;  iii.  471,473. 
Marks  v.  Marks,  ii.  683. 
V.  Marsh,  i.  429. 
V.  Pell,  ii.  181. 
Marlborough  v.  Godolphin,  ii.  673,  678. 
Marley  v.  Rogers,  i.  560 ;  ii.  740. 
Marlow  v.  Smith,  ii.  514. 
Marr  v.  Gilliam,  iii.  145. 
Marriner  v.  Saunders,  i.  672. 
Marsellis  v.  Thalimer,  i.  179. 
Marsh  v.  Austin,  ii.   67,    140,  141 ;  iii. 
288. 
V,  Hammond,  i.  659. 


Mai'sh  V.  Lee,  ii.  150. 

V.  Losenby,  i.  347. 
V.  Pike,  ii.  210. 
V.  Rice,  iii.  120. 
V.  Turner,  ii.  93. 
Marshall  v.  Barr,  i.  408. 
V.  Cave,  ii.  234. 
V.  Christmas,  ii.  91. 
i;.  Clark,  iii.  187. 
V.  Conrad,  u.  274,  278,  281. 
V.  Crehore,  i.  681. 
V.  Fisk,  i.  36  ;  ii.  441 ;  iii.  362. 
V.  Green,  iii.  344. 
V.  King,  ii.  548 ;  iii.  17. 
V.  Niles,  in.  397. 
V.  Pierce,  iii.  76. 
V.  Roberts,  iii.  325. 
V.  Ruddick,  i.  411,  424. 
V.  Steam  Navigation  Co.,  iii. 

417. 
V.  Stewart,  ii.  45,  55,  62. 
V.  Trumbull,  iii.  262. 
Marshall,    &c.    Scliool    v.    Iowa,    &c. 

School,  ii.  2. 
Marston  v.  Gale,  i.  632. 

V.  Hobbs,    iii.   451,   452,   453, 

469,  492. 
V.  Marston,  ii.  249 ;  iii.  336. 
Martel  v.  Somers,  i.  418,  427. 
Martin  v.  Baker,  iii.  450. 
V.  Ballon,  h.  7,  10. 
V.  Beatty,  ii.  157. 
V.  Berens,  i.  505. 
V.  Crompe,  i.  521. 
V.  Evansville,  iii.  414. 
V.  Houghton,  i.  630. 
V.  Huglies,  i.  377. 
V.  Knowlys,  i.  660. 
V.  Martin,  i.  252,  253,  266,  327, 

333,  527,  529  ;  ii.  412,  482. 
V.  McReynolds,  i.  671 ;  ii.   118, 

122,  256. 
V.  Mowlin,  i.  519,  525  ;  ii.  97,  99. 
V.  Nance,  iii.  412,  415. 
V.  O'Brien,  iii.  418. 
V.  O'Conner,  i.  500,  513. 
V.  Quattlebam,  i.  656  ;   iii.  324. 
V.  Smitli,  i.  653. 
V.  Waddell,  i.  03,  64;  iii.    182, 

188,  190,  191. 
V.  Wade,  ii.  265. 
V.  Williams,  iii.  320. 
Martindale  v.  Martindale,  i.  269. 
Martineau  v.  McCollum,  ii.  122. 
Marvin  v.  Titsworth,  ii.  79. 
V.  Trumbull,  i.  667. 
Marwick  v.  Andrews,  ii.  10. 
Maskelyne  v.  Maskelyne,  iii.  532. 
Mason  v.  AinsVvorth,  ii.  69. 
V.  Barnard,  ii.  113. 
V.  Denison,  i.  628. 
V.  Fenn,  i.  437. 

V.  Hill,  i.  633  ;  ii.  348,  350,  851. 
V.  Holt,  i.  623. 
V.  Jones,  ii.  516. 


Ixxvi 


TABLE   OF   CASES    CITED. 


Mason  v.  Martin,  ii.  524. 

V.  Mason,  ii.  516,  531. 
V.  I'ayne,  ii.  20G ;  iii.  328. 
V.  Sniallwooil,  ii.  4-45. 
Mason's  Kstate,  ii.  198. 
Mass  V.  Sheldon,  iii.  438. 
Mass.  Hos.  Life  Ins.  Co.  v.  Wilson,  i. 

561 ;  ii.  137,  138. 
Massey  v.  Goyder,  ii.  362. 
Massie  v.  Sharp,  ii.  124. 
i;.  Watts,  iii.  238. 
Masters  v.  Pollie,  i.  12. 
Masury  v.  Southwortli,  i.  496,  498,  501, 

502,  537  ;  ii.  283,  288. 
Mather  v.  Corless,  iii.  301. 

V.  Chapman,  iii.  55,  418. 
V.  Ministers,  &c.,  i.  58. 
Mathews  v.  Aikin,  ii.  214. 
V.  Kel)le,  ii.  731. 
Mathis  V.  Hammond,  ii.  700. 
Matlock  V.  Lee,  i.  302. 

V.  Matlock,  i.  668. 
V.  Roberts,  i.  99 ;  ii.  690. 
Matthews  v.  Coalter,  iii.  246. 

V.  Duryee,  i.  207  ;  ii.  167. 
V.  Taberner,  i.  550. 
V.  Walhvyn,  ii.  97,  130,  247. 
V.  Ward,  i.  65,  119;  ii.  444, 
494,  527,  591 ;  iii.  47, 49, 
132,  353,  360. 
Matthewson  v.  Johnson,  i.  457. 

V.  Smith,  i.  229. 
Matthie  v.  Edwards,  ii.  68. 
Mattice  v.  Lord,  i.  478. 
Mattix  V.  Weand,  ii.  91. 
Mattock  V.  Stearns,  i.  181,  333. 
Matts  ('.  Hawkins,  i.  661 ;  ii.  363. 
Maulding  v.  Scott,  ii.  724. 
Maule  V.  Ashmead,  i.  488. 

V.  Weaver,  i.  486  ;  iii.  312. 
Maull  V.  Wilson,  i.  151. 
Maund's  case,  i.  481. 
Maundrell   v.   Maundrell,  i.  285,   460; 

ii.  640,  644,  651. 
Maupin  v.  Emmons,  iii.  316,  317. 
Maverick  v.  Lewis,  i.  445,  572. 
Maxcy  v.  O'Connor,  iii.  198. 
Maxfield  v.  Burton,  ii.  84. 
Maxwell  v.  Maxwell,  i.  681. 
May  V.  Colder,  i.  459. 
V.  Le  Clair,  iii.  357. 
V.  May,  ii.  58. 
V.  Rice,  i.  519,  598. 
V.  Rumney,  i.  268. 
V.  Tillman,  i.  238. 
Mayberry  v.  Standish,  ii.  331. 
Mayburry  v.  Brien,  i.  199,  202,  206,  219, 

222,  277. 
Mayer  v.  Mailer,  i.  545. 
Mayham  v.  Coombs,  ii.  91. 
Mayhew  v.  Hardisty,  i.  528. 
Mayho  v.  Brickhurst,  i.  501. 

V.  Colton,  i.  377. 
Mayn  v.  Beak,  i.  440. 
Maynard  v.  Esher,  ii.  305,  345. 


Maynard  v.  Hunt,  ii.  100,  128,  162. 

V.  Maynard,  i.   468;  iii.  292, 

296. 
V.  Weeks,  iii.  420. 
Mayo  p.  Feaster,  i.  160. 

V.  Fletcher,  ii.  101,  134,  135,  186, 

137,  166,  243. 
V.  Judah,  ii.  63. 
V.  Libby,  iii.  204. 
Mayor  of  Carlisle  v.  Blamire,  ii.  169. 
Mayor,  &c.  v.  I)e  Armas,  iii.  193. 
V.  Eslava,  iii.  191. 
V.  Mabie,462,488,490,527; 

iii.  489. 
V.  Ohio  &  P.  R.  R.,  iii.  190. 
V.  Whitt,  561,  567,  569. 
McAfee  v.  Kiern,  iii.  201. 
McAllister  v.  Montgomery,  i.  669. 
McAlpine  v.  Burnett,  ii.  87,  88. 
McArthur  v.  Franklin,  i.  206,  225,  294, 

299,  301 ;  ii.  251,  255. 
McAuley  v.  Wilson,  iii.  521. 
McAuley's  Appeal,  i.  426. 
McBraj-er  v.  Roberts,  ii.  43. 
McBryde  ;.'.  Wilkinson,  iii.  322. 
JMcBurney  v.  Mclntire,  i.  508. 
McCabe  v.  Bellows,  i.  234;  ii.  174,  175, 
181,  212. 
V.  Grey,  ii.  117;  iii.  319. 
V.  Hunter,  iii.  272. 
V.  Mazzuchelli,  i.  365,  419. 
V.  Swap,  i.  228 ;  ii.  174,  175. 
McCafferty  v.  McCafferty,  i.  191. 
McCall  V.  Lenox,  ii.  102,  136,  248. 
V.  Neely,  iii.  134. 
V.  Yard,  ii.  250. 
McCall's  Lessee  v.  Carpenter,  i.  679. 
McCalmont  ".  Whitaker,  ii.  350. 
McCann  v.  Edwards,  iii.  258. 
McCans  v.  Board,  i.  325. 
McCarron  v.  Cassidy,  ii.  50,  228. 
V.  O'Connell,  ii.  380. 
McCartee  v.  Orphan  Asylum,  iii.  517. 
V.  Teller,i.  315,316,  317,  319, 
322. 
McCarthy  v.  White,  ii.  185. 
McCartney  u.  Bostwick,  ii.  531,  532. 

V.  Hunt,  i.  558. 
McCarty  v.  Ely,  i.  456,  491. 

V.  Kitchenman,  ii.  318. 
V.  Leggett,  iii.  449. 
V.  Priest,  ii.  93. 
McCauley  v.  Grimes,  i.  218,  219. 
McCausland  v.  Fleming,  iii.  430. 
McClain  v.  Doe,  i.  460. 
V.  Gregg,  329. 
McClanahan  v.  Chambers,  ii.  122. 

V.  Porter,  i.  282,  289,  291, 
McClane  v.  White,  ii.  51. 
ISIcClannahan  v.  Barron,  iii.  162. 
McClary    v.   Bixby,    i.   363,   366,  392, 

431. 
McCleskey  v.  Leadbetter,  iii.  103. 
McCHntock  v.  Bryden,  ii.  379. 
McClintock's  Appeal,  i.  11. 


TABLE  OP  CASES  CI.TED. 


Ixxvii 


McClowry  v.  Croglian,  i.  494. 
McClung  V.  Ross,  i.  656,  657  ;  iii.  142. 
McClure  v.  Harris,  i.  207,  218,  220,  296. 

V.  Meleiitly,  iii.  529. 
McConnel  v.  llodson,  ii.  122. 

V.  Ilolobush,  ii.  166,  228,  229. 
V  Keed,  iii.  359. 
McConnell  v.  Bowdry,  560. 

I'.  Brown,  iii.  282,  286,  320. 
V.  Downs,  iii.  110. 
McCormick  v.  Bishop,  i.  356  ;  ii.  366. 
t;.  Connell,  i.  481. 
V.  Digby,  ii.  129,  163,  187. 
V.  Fitzniorris,  iii.  246. 
V.  McCormiclc,  i.  132. 
V.  McMiirtrie,  iii.  75. 
V.  Taylor,  i.  275. 
,      V.  Wilcox,  i.  406. 
McCorry  v.  King's  Heirs,  i.   120,   126, 

164,  174,  180,  181. 
McCosker  .j.  Brady,  ii.  508,  528. 
McCoughal  V.  Ryan,  iii.  191. 
McCoy  V.  Galloway,  iii.  408,  425,  426. 
McCraken  v.  San  Francisco,  iii.  81. 
McCrady  v.  Brisbane,  iii.  460. 
McCraine  v.  Clarke,  iii.  538. 
McCraney  v.  McCraney,  i.  243. 
McCrary  v.  Fortson,  i.  403. 
McCrea  v.  Marsh,  i.  635. 

V.  Purmort,  iii.  372,  377. 
McCready  v.  Saxton,  iii.  226. 

V.  Thompson,  ii.  330,  347. 
McCrory  v.  Foster,  ii.  484. 
McCrackin  v.  Wright,  i.  302. 
McCue  V.  Gallagher,  ii.  476. 
McCulloch  V.  Aten,  iii.  411. 

V.  Eudaly,  iii.  325. 
V.  Maryland,  iii.  222. 
McCullough  V.  Feiton,  ii.  716. 
V.  Gliddon,  ii.  602. 
V.  Irvine,  i.  131,  142,  148, 
1.56. 
McCulIum  V.  McKinsie,  iii.  540. 
McCully  V.  Smith,  i.  304. 
McCumber  v.  Gilman,  ii.  228,  229,  234. 
McCune  v.  McMichael,  iii.  79,  82. 
McCurdy  v.  Canning,  i.  672. 
V.  Clark,  ii.  123. 
V.  Smith,  i.  565. 
McCusker  v.   McEvey,   iii.    109,    118, 

467. 
McDaniel  v.  Grace,  i.  174. 

V.  McDaniel,  i.  287. 
McDaniels  v.  Colvin,  ii.  152,  155. 

V.  Lapham,  ii.  190. 
McDermott  v.  French,  i.  672,  674. 
McDevitt  V.  Sullivan,  i.  562. 
McDill  V.  McDill,  iii.  271. 
McDonald  v.  Askew,  iii.  342. 

V.  Badger,  i.  353,  395 ;  ii.  29. 
V.  Bear  River   Co.,  ii.  380 ; 

iii.  278. 
V.  Crandall,  i.  383,  396,  397, 

409,  422. 
V.  Eggleston,  iii.  242. 


McDonald  v.  Lindall,  ii.   333 ;   iii.  395, 
429. 

V.  McDonald,  ii.  187,  475. 

V.  McLeod,  ii.  51. 

V.  Sinims,  ii.  492. 
McDonnell  v.  Pope,  i.  548. 
McDonough  v.  Gilman,  i.  541,  542. 

V.  Squire,  ii.  50. 
McDougal  V.  Copnon,  ii  173. 
McDowell  V.  Addams,  iii.  10. 

V.  Lloyd,  ii.  75. 

V.  Morgan,  iii.  197. 

V.  Simpson,  i.  602,  614. 
McElderry  v.  Fiannagan,  i.  530. 

V.  Smith,  ii.  102. 
McFadden  v.  Haley,  i.  666. 
McFarlan  ik  Watson,  i.  516. 
McFarland  v.  Chase,  i.  585. 

V.  Febiger,  i.  249. 

V.  Goodman,  i.  250,  419 ;  iii. 
91. 

V.  Stone,  iii.  165. 
McFarliu  v.  Essex  Co.,  ii.  366. 
McGahen  v.  Carr,  iii.  226. 
McGan  v.  Marshall,  ii.  118,  140. 
McGarrity  v.  Byington,  ii.  381 ;  iii.  79. 
McGary  v.  Hastings,  iii.  468. 
McGaughery  v.  Henry,  iii.  17. 
McGee  v.  Gibson,  i.  599. 

V.  McGee,  i.  245,  395. 
McGhee  v.  Way,  i.  347. 
McGill  V.  Ash,  i.  658. 
McGillivray  v.  Evans,  i.  684. 
McGinnis  v.  Porter,  i.  565,  571. 
McGinnis'  Appeal,  ii.  219. 
McGirr  v.  Aaron,  ii.  510. 
McGiven  v.  Wheelock,  ii.  197. 
McGlashan  v.  Tallmadge,  i.  545. 
McGlynn  v.  Moore,  i.  481,  483. 
McGonigal  v.  Plummer,  ii.  91. 
McGoodwin  v.  Stephenson,  ii.  101,  169. 
McGowan  v.  McGowan,  ii.  476. 

V.  VVay,  ii.  562. 
McGready  v.  McGready,  ii.  63. 
McGregor  v.  Brown,  i.  13,  140,  142, 145, 
147  ;  iii.  343. 

V.  Comstock,  i.  97  ;  ii.  423 ; 
iii.  207. 

I'.  Gardner,  ii.  476,  524,  663. 
McGuffey  v.  Finley,  ii.  258. 
McGuire  v.  Grant,  ii.  360. 
V.  Ramsey,  i.  667. 
V.  Stevens,  iii.  237,  399. 
McHendry  v.  Reilly,  i.  407. 
McHenry  u.  Cooper,  ii.  214. 
Mcllvaine  v.  Harris,  iii.  3'J2. 
Mclntier  v.  Shaw,  ii.  113,  120. 
Mclntire  v.  Cross,  iii.  17. 
Mclntyre  v.  Agricultural  Bank,  ii.  79. 
I'.  Humphreys,  ii.  51. 
V.  Whitfield,  ii.  110. 
Mclver  v.  Ciierry,  i.  206 ;  ii.  255. 
McJilton  V.  Love,  iii.  220. 
McKay  v.  Bloodgood,  iii.  280. 
V.  Young,  ii.  524. 


Ixxviii 


TABLE    OF   CASES   CITED. 


McKean  v.  Mitchell,  iii.  319. 
McKee  i-.  Anttelrodt,  i.  523. 
V.  Eailey,  i.  Uo6. 
V.  Hicks,  iii.  286. 
V.  Parchment,  iii.  63. 
V.  Pfout,  i.  60,  V20,  182. 
V.  Straub,  i.  677. 
V.  Wilcox,  i.  358,  365,  414,  425, 
431. 
McKelvey  v.  Truby,  iii.  75. 
McKelway  v.  Seymour,  i.  89 ;  ii.  6,  13. 
McKenzie  v.  Lexington,  i.  547. 

V.  Murphy,  i.  346. 
McKeon  v.  Bisbee,  ii.  380. 

V.  Whitney,  i.  522. 
McKey  v.  Welch,  i.  655  ;  iii.  262. 
McKildoe  v.  Dorsacott,  i.  471,  484. 
Mcffillsack  V.  Bullington,  i.  592. 
McKinny  v.  Miller,  ii.  208,  238. 
V.  Reader,  i.  547,  551. 
V.  Rhodes,  iii.  282,  295. 
V.  Settles,  iii.  379. 
McKinster  v.  Babcock,  ii.  151. 
McKinstry  v.  Conly,  ii.  59,  63. 
V.  Merwin,  ii.  150. 
McKinzie  v.  Perrill,  iii.  318. 
McKircher  v.  Hawley,  ii.  1S7,  138. 
McKissick  v.  Pickle,  ii.  14. 
McKnight  v.  Wimer,  ii.  79. 
McLain  v.  Smith,  ii.  262. 
McLanahan  v.  McLanahan,  ii.  43. 
McLane  v.  Moore,  iii.  165. 
McLaren  v.  Spalding,  i.  528. 

V.  Thompson,  ii.  147. 
McLaughlin  v.  Johnson,  i.   15,  16 ;    ii. 
158. 
V.  Nash,  i.  6,  25. 
McLaiirie  v.  Thomas,  ii.  87,  89,  90,  92. 
McLean  v.  Bovee,  i.  10. 

V.  Lafayette  Bank,  ii.  211,  219. 
V.  McDonald,  ii.  544. 
V.  Nelson,  ii.  523. 
V.  Ragsdale,  ii.  260. 
McLelland  v.  Turner,  iii.  528. 
McLenan  v.  Sullivan,  ii.  475,  478. 
McMahon  v.  Burchell,  i.  662. 
McManus  v.  Carmichael,  iii.  413. 

V.  Campbell,  i.  362. 
McMillan  v.  Richards,  ii.  97,  104,  107, 
129,  262. 
V.  Robbins,  i.  126. 
McMinn  i'.  Whelan,  iii.  228. 
McMurphy  v.  Minot,  i.  481,  -520,  523. 
McMurray  v.  Connor,  i.  412. 
McNair  v.  Lee,  ii.  181. 
McNamee  v-.  Morland,  iii.  136,  142,  158, 

161. 
McNaughton  v.  McNaughton,  iii.  .509. 
McNear  v.  McComber,  iii.  398,  476. 
McNeely  v.  Rucker,  iii.  327. 
McNeil  y.  Bright,  iii.  207. 
McNeill  V.  Call,  ii.  242. 
McNerle  v.  Gerard,  ii.  512. 

V.  Pope,  ii.  483. 
McPhersoa  v.  Foster,  iii.  403. 


McPherson  v.  House!,  ii.  147. 

V.  Seguiiie,  i.  658,  659. 
V.  Walters,  iii.  72. 
McQuash  v.  Whaley,  i.  368. 
McQuesney  v.  lliester,  ii.  283. 
McQuesten  ?;.  Morgan,  i.  481. 
McRae  i".  Farrow,  ii.  077. 
McRaven  v.  McGuire,  iii.  274,  275,  319, 

320. 
McHee's  Adm'rs  v.  Means,  ii.  680,  699, 

720,  721,  734. 
McRimmon  v.  Martin,  ii.  88. 
McRoberts  u.  Washburne,  ii.  292,  293, 

29-5,  296,  297. 
McSorley  v.  Larissa,  ii.  229. 
McTaggart  v.  Thompson,  ii.  161. 
McTavish  v.  Carroll,  ii.  314. 
McVay  v.  Bloodirood,  ii.  124. 
ISIcWhorter  v.  Wright,  iii.  371. 
Mc Williams  o.  Morgan,  iii.  72. 

V.  Nisly,  i.  80 ;    ii.  7 ;   iii. 
104. 
]Meacham  v.  Sternes,  ii.  529. 
Meail  V.  York,  ii.  188. 
Meader  v.  Stone,  i.  613,  622. 
Meadows  v.  Parry,  ii.  689. 
Means  v.  Welles,  i.  58 ;  iii.  144. 
Mebane  v.  Patrick,  ii.  322,  329,  .332. 
Mechanics'  Bank  v.  Bank  of  Niagara, 
ii.  123. 
V.  Edwards,  ii.  219. 
Ins.  Co.  V.  Scott,  i.  443,  445, 
490. 
Medford  v.  Medford,  ii.  511. 
Medler  v.  Hiatt,  iii.  463. 
Medley  v.  Eliot,  ii.  185. 
Med  way  ».  Needham,  i.  213. 
Meech  v.  Meech,  418,  419. 
Meeker  v.  Meeker,  iii.  378. 
Megerle  v.  Ash,  iii.  204. 
Mehaffy  v.  Dobbs,  i.  658. 
Meig's  Appeal,  i.  21. 
Meighen  v.  Strong,  iii.  320. 
Meily  v.  Wood,  i.  670. 
Meister  v.  Burney,  i.  495. 
Melizet's  Appeal,  i.  190,  192. 
Melle4i  V.  Rutland,  &c.  R.  Ii.,  ii.  123. 

V.  Whipple,  ii.  210 ;  iii.  313. 
Melley  v.  Casey, 'i.  456. 
Melling  v.  Leak,  i.  591 ;  iii.  163. 
Mellon's  Appeal,  ii.  146. 
Mellor  V.  Lees,  ii.  49. 
Mellow  V.  May,  i.  548. 
Melius  V.  Snowman,  i.  181. 
Melross  v.  Scott,  ii.  88. 
Melsheimer  v.  Ross,  ii.  567. 
Melton  V.  Andrews,  i.  367. 
Melvin  v.  Proprietors,  &c.,  i.  180,  181; 
in.  54,  131,  134,  144,  145, 
148,  257,  267, 297,  398, 402, 
405. 
V.  Whiting,   ii.   302,    329,    330, 
332,  366  ;  iii.  53,  54. 
Mende  v.  Delaire,  ii.  43. 
Mendenhall  v.  Parish,  iii.  376 


TABLE   OP    CASES    CITED. 


Ixxix 


Mender  v.  Place,  i.  426. 
Meni  v.  Rathbone,  i.  480  ;  ii.  145. 
Menkins  v.  Blumenthal,  iii.  138. 
Menough's  Appeal,  i.  525. 
Menzies  v.  Breadalbin,  iii.  57. 

V.  Lightfoot,  ii.  153. 

i>.  McDonald,  i.  652. 
Meraman  v.  Coldwell,  i.  182. 
Merced  Co.  v.  Fremont,  ii.  360. 
Mercer  i>.  Mercer,  iii.  335. 

V.  Selden,  i.  174 ;  iii.  165. 

V.  Watson,  iii.  212. 

V.  Woodgate,  iii.  73. 
Mercier  v.  Chace,  i.  357,  358,  372,  386, 

425. 
Meredith  v.  Andres,  i.  657. 
Meriam  v.  Harsen,  iii.  259,  377. 

V.  Meriam,  ii.  244. 
Merriam  t-.  Barton,  ii.  174,  225. 
Merrick  v.  Wallace,  iii.  326. 
Merrifield  v.  Cobleigh,  ii.  7. 
Merrill  v.  Berkshire,  i.  665. 

V.  Brown,  ii.  408. 

V.  Bullock,  i.  618,  619,  620. 

V.  Chase,  ii.  172,  189. 

i;.  Emery,  i.  326  ;  ii.  10, 18,  724, 
725. 

V.  Harris,  ii.  14  ;  iii.  476. 

V.  Sherburne,  i.  192 ;  iii.  211. 
Merrills  v.  Swift,  iii.  298. 
Merriraan  v.  Lanfield,  i.  -391. 
Merritt  v.  Bartholick,  ii.  118. 

V.  Home,  i.  174. 

V.  Hosmer,  ii.  213. 

V.  Judd,  ii.  380. 

V.  Lambert,  ii.  172. 

V.  Morse,  iii.  396,  472. 

V.  Wells,  ii.  87. 
Merwine  v.  Camp,  iii.  276. 

V.  Wheeler,  ii.  331. 
Meserve  v.  Meserve,  i.  273. 
Messinger  v.  Armstrong,  i.  603,  606. 
Messiter  v.  Wright,  ii.  212. 
Mestaer  v.  Gillespie,  ii.  423. 
Metcalf  V.  Gillet,  iii.  230. 

V.  Putnam,  iii.  381. 

V.  Westaway,  iii.  6,  381. 
Methodist  Church  v.  Jaques,  iii.  287. 

V.  Kemington,        iii. 

522. 
V.  Wood,  ii.  484. 
Meuley  v.  Zeigler,  iii.  275,  276. 
Meyer  v.  Campbell,  ii.  166. 

V.  Claus,  i.  417. 

V.  Meyer,  i.  385. 
Miami  Ex.  Co.  v.  U.  S.  Bank,  ii.  43,  48, 

51,  62,  97,  103,  169,  219. 
Michaud  v.  Girod,  ii.  73,  75,  524. 
Michigan  Ins.  Co.  v.  Brown,  ii.  152. 
Mckeles  v.  Dillaye,  ii.  228,  229. 

V.  Townsend,     ii.     108 ;     iii. 
107. 
Mickle  V.  Miles,  i.  462. 
Mid.  Kent  Railway,  in  re,  iii.  547. 
Middlebrook  v.  Corwin,  i.  19,  577. 


Middlesex  Bank  v.  Minot,  ii.  74. 
Middleton  v.  Findla,  iii.  263. 
V.  Perry,  iii.  424. 
V.  Pritchard,  iii.  413,  417. 
Middletown  v.  Sage,  iii.  419. 
Mildraay's  case,  i.  169. 
Miles  V.  Fisher,  i.  644. 
V.  Gray,  ii.  122. 
V.  James,  i.  446. 
V.  Lingerman,  iii.  249,  252. 

V.  Miles,  i.  131,  389,  426. 
V.  Smith,  ii.  255. 
Milford  V.  Holbrook,  i.  539. 
Milhau  V.  Sharp,  ii.  292,  295 ;  iii.  420 
Millard  v.  Baldwin,  ii.  209. 

V.  Hathaway,  ii.  475,  481. 
Mill  Dam  Foundry  v.  Hovey,  iii.  272, 

273. 
Mill  River  Co.  v.  Smith,  i.  4 ;  iii.  342, 

410. 
Milledge  v.  Lamar,  i.  265. 
Miller  v.  Auburn,  &c.  R.  R.  Co.,  i.  630. 

V.  Baker,  i.  11. 

V.  Bentley,  iii.  402. 

V.  Beverly,  i.  280. 

V.  Bonsadon,  i.  558,  560. 

V.  Bradford,  ii.  147  ;  iii.  319. 

V.  Cherry,  iii.  405. 

V.  Chittenden,  ii.  410,  510,  511, 
519,  699 ;  iii.  266,  324,  518, 
522. 

V.  Dennett,  i.  681. 

r.  Donaldson,  ii.  187. 

V.  Evans,  ii.  79. 

V.  Ewing,  iii.  112,  148. 

V.  Garlock,  ii.  323. 

V.  Gilleland,  iii.  247. 

V.  Goodwin,  iii.  375. 

V.  Harbert,  i.  447. 

V.  Helm,  ii.  187. 

V.  Henderson,  ii.  258. 

V.  Holman,  iii.  117. 

V.  Lang,  i.  567,  568. 

V.  Levi,  ii.  24,  25. 

V.  Lincoln,  ii.  181,  223,  224, 

V.  Lindsey,  iii.  189. 

V.  Lockwood,  ii.  151. 

V.  McBrier,  i.  556. 

V.  Macomb,  ii.  734. 

V.  Manwaring,  iii.  247. 

V.  Marckle,  i.  355,  408,  421 ;  ii. 
246. 

V.  Meigs,  iii.  360. 

V.  Miller,  i.  182,  653,  658,  661, 
674,  683  ;  ii.  349 ;  iii.  14, 132. 

V.  Pearce,  iii.  336. 

V.  R.  &  W.  R.  R.,  ii.  158. 

V.  Shackleford,  i.  674  ;  iii.  92. 

V.  Shaw,  iii.  151,  152. 

V.  Snowman,  i.  333. 

V.  Stump,  i.  205,  207. 

V.  Thacher,  ii.  501. 

V.  Whittier,  ii.  153,  229. 
Miller's  Appeal,  i.  378. 
Millership  v.  Brookes,  iii.  293. 


Ixxx 


TABLE   OF   CASES   CITED. 


Millett  V.  Parker,  iii.  299,  301,  302. 
V.  Fowle,  iii.  157,  408,  429. 
Millican  v.  Millican,  ii.  501. 
Million  r.  Riles-,  iii.  90. 
iSliils  V.  Baelir,"  i.  542. 
V.  Banks,  ii.  7(3. 
V.  Catlin,  iii.  448,  4-53,  457,  477. 
V.  County  Comniis.sioners,  ii.  293. 
V.  Darley,  ii.  48,  00. 
V.  Dennis,  ii.  259. 
V.  Goff,  i.  607. 
V.  Gore,  iii.  286,  287,  294. 
i;.  Grant,  Estate  of,  i.  364. 
t".  Haynes,  ii.  510. 
V.  Lockwood,  iii.  382. 
t;.  Merrynian,  i.  518. 
V.  Mills,  i.  325. 
V.  Smith,  iii.  316. 
V.  Sheparfl,  ii.  1.33. 
V.  SpauUiing,  i.  398. 
V.  St.  Clair,  ii.  297. 
V.  Van  Voorliis,  i.  206,  220,  221, 
225,  251,  295  ;  ii.  255. 
Milton  V.  Andrews,  i.  252. 
Mims  V.  Lockett,  ii.  90. 

l:  Macon  &  West.  R.  R.,  ii.  90,  91. 
V.  Mims,  ii.  144,  253,  254,  255. 
Miner  v.  Stevens,  i.  613,  622  ;  ii.  100. 
Minnesota  Co.  v.  St.  Paul  Co.,  i.  16;  ii. 

158. 
Minor  v.  President  of  Natchez,  iii.  223, 
225,  230. 
V.  Rogers,  ii.  463. 
Minot  i;.  Brooks,  iii.  155,  156. 
Minter  v.  Wraith,  ii.  716. 
Mitchell  V.  Berry,  ii.  484,  525. 
V.  Bartlett,  iii.  283. 
V.  Bogan,  ii.  68,  109. 
V.  Burnham,  ii.  34,  46,  64,  QG, 

116,  117,  128,  148,  257. 
V.  Clark,  ii.  186. 
V.  Home  Ins.  Co  ,  iii.  239. 
V.  Kingman,  i.  455. 
V.  Laden,  ii.  124. 
V.  Mitchell,    i.   257,   323 ;    iii. 

528. 
V.  Pillsbury,  iii.  461. 
V.  Ryan,  i.  174  ;  iii.  290,  291, 

292,  293,  296. 
V.  Sevier,  i.  329. 
r.  Shanley,  ii.  244. 
V.  Starbuck,  i.  18,  677. 
V.  Warner,  iii.  449,  450,  457. 
Mitcheson  v.  Hewson,  i.  472. 
]Mix  V.  Hotchkiss,  ii.  230,  233. 
V.  King,  i.  383. 
V.  Smith,  iii.  199. 
Mixer  v.  Reed,  iii.  389. 
Mizell  V.  Burnett,  ii.  10. 
Mizner  v.  Monroe,  i.  613. 
Moale  V.  Mayor  of  Baltimore,  iii.  212, 

222,  421. 
Mobile  D.  &  I.  Co.  V.  Kuder,  ii.  206. 
iloderwell  v.  Mullison,  i.  667,  668. 
Moffat  V.  Smith,  i.  520,  537. 


Moffatt  V.  Strong,  ii.  706,  724. 
Moffit  V.  South,  i.  517. 
Moffitt  V.  McDonald,  ii.  524. 
Mohawk  Bridge  v.  Utica  R.  R.,  ii.  297. 

R.  R.  V.  Clute,  i.  18. 
Mohler's  Appeal,  ii.  122. 
Mollett  I'.  Brayne,  i.  550. 
Mollineaux  u.  Powell,  i.  160. 
Molton  V.  Camroux,  i.  455. 
Monk  V.  Butler,  iii.  341. 

V.  Capen,  i.  386,  387. 
Monmouthshire  Canal  v.  Harford,    ii. 

323,  325. 
Monongahela  Bridge  v.  Kirk,  iii.  415. 
Monroe  v.  Bowen,  ii.  5. 
V.  May,  i.  357. 
Montague  v.  Dawes,  ii.  72,  74. 
V.  Gay,  i.  519. 
V.  Ila^'es,  ii.  504. 
Montefiori  v.  Browne,  ii.  661. 
Montgomery  v.  Bruere,  i.  206,  237. 

V.  Chadwick,  u.  54,  224, 

229. 
V.  Craig,  i.  571. 
V.  Dorion,  i.  74 ;    iii.  48, 

280. 
V.  Middlemiss,ii.  240,252, 

262. 
V.  Tutt,  i.   406 ;    ii.    239, 
251. 
Monypenny  v.  Dering,  ii.  581. 
Moody  V.  Hutchinson,  iii.  200. 

V.  King,i.  171,  172,263. 
Mooers  v.  Dixon,  i.  396. 
V.  Wait,  i.  154. 
V.  White,  i.  74. 
Mooney  v.  Brinkley,  ii.  186. 

V.  Maas,  ii.  251,  257,  259. 
Moore,  ex  parte,  i.  325. 

V.  Beasley,  i.  558,  603. 

V.  Beasom,  ii.  173. 

V.  Bennett,  iii.  328. 

V.  Bickham,  ii.  428,  429. 

V.  Boyd,  i.  585,  604,  624. 

V.  Burnet,  ii.  527. 

V.  Cable,  ii.  182,  224,  228,  234. 

V.  Cornell,  ii.  98,  117. 

V.  Dimond,  ii.  606,  656 ;  iii.  523, 

528. 
V.  Dunning,  i.  421. 
V.  Ellsworth,!.  157,  158. 
V.  Esty,  i.  195,  221,  226,  234,238: 
V.  Farrow,  iii.  90,  97. 
V.  Fletcher,  iii.  388,  396. 
V.  Frost,  i.  301. 
V.  Hazleton,  iii.  294. 
V.  Howe,  ii.  706,  708. 
V.  Hutchins,  i.  193. 
V.  Jourdan,  iii.  317. 
V.  Kent,  i.  193. 
V.  Littel,  ii.  550;  iii.  95. 
V.  Luce,  i.  127 ;  iii.  164. 
V.  Lyons,  ii.  542,  550. 
V.  Magrath,  iii.  431. 
V.  Mason,  i.  623. 


TABLE   OF   CASES    CITED. 


Ixxxi 


Moore  r.  Mayor,  i.  192. 

V.  Merrill,  iii.  450,  469. 

V.  Miller,  i.  449. 

V.  Mobertr,  ii.  215. 

V.  Moore,  "i.  678  ;  ii.  501 ;  iii.  238, 

517,  521. 
V.  Morrow,  i.  617. 
V.  New   York,  i.   189,   190,  251, 

270,  300. 
V.  Parker,  ii.  598. 
V.  Pendleton,  iii.  280. 
V.  Pitts,  ii.  4. 
V.  Rake,  ii.  709;  iii.  14. 
V.  Rawson,  i.  639;  ii.  324,  341, 

342,  344,  345,  370. 
V.  Richardson,  i.  388. 
V.  Rollins,  i.  208,  220,  222. 
b.  Shultz,  ii.  466. 
V.  Smaw,  ii.  382 ;  iii.  188,  394. 
V.  Spruill,  i.  573. 
V.  Tisdale,  i.  246. 
V.  Titman,  ii.  106. 
V.  Townshend,  i.  160. 
•   ■  V.  Vinten,  i.  330. 
V.  Wade,  ii.  50. 
V.  Ware,  ii.  120. 
V.  Weaver,  ii.  565,  588,  606. 
V.  Weliber,  i.  490,  531,  538,  544. 
V.  Wilkinson,  iii.  192,  194.     " 
V.  Worley,  iii.  330. 
Moorecroft  v.  Dowding,  ii.  504. 
Moorehouse  v.  Cotheal,  i.  131,  142. 
Mordeeai  v.  Parker,  ii.  620. 
Moreau  v.  Detciiemendy,  i.  87. 

V.  Safferans,  i.  667  ;  iii.  267. 
Morehead  v.  Watkyns,  i.  605,  610. 
Moreton  v.  Harrison,  ii.  86,  92. 
Morey  v.  Herrick,  iii.  532. 
V.  McGuire,  ii.  101. 
Morgan  v.  Bissell,  i.  450,  452. 
V.  Davis,  ii.  171,  190. 
V.  Graham,  iii.  118,  2-39. 
V.  Herrick,  i.  687. 
V.  Larned,  iii.  101. 
V.  Moore,  ii.  497  ;  iii.  429. 
V.  Morgan,  i.  165,  168,  169;  ii. 

182,  183,  706. 
V.  Reading,  iii.  410,  413. 
V.  Stevens,  i.  363. 
Morin  v.  Bishop  of  Durham,  iii.  532. 
Moritz  V.  HoiJman,  iii.  336. 
Morley  v.  Saunders,  i.  124. 
Morrell  v.  Fisher,  iii.  401. 
Morrice's  case,  i.  688. 
Morrill  v.  Hopkins,  i.  417. 
V.  Macknian,  i.  614. 
V.  Morrill,  i.  084. 
V.  Titcomb,  iii.  428. 
Morris  v.  Callanan,  iii.  149. 
V.  Edgington,  ii.  338. 
V.  French,  i.  6. 
V.  Harris,  i.  688. 
V,  Henderson,  iii.  294. 
V.  Morris,  i.  669. 
V.  Nixon,  ii.  43. 
VOL.   I.  / 


Morris  v.  Oakford,  ii.  210. 
V.  Phaler,  ii.  721. 
V.  Phelps,  iii.  493. 
V.  Rowan,  iii.  498. 
V.  Sargent,  i.  250,  410,  424;  iii, 

3i4. 
V.  Stephens,  iii.  267. 
V.  Vanderen,  i.  36;  iii.  245. 
V.  Ward,  i.  398,  492. 
V.  Way,  ii.  79. 
Morris  Canal  v.  Levvis,  iii.  82. 

V.  Ryerson,  iii.  375. 
Morrison  v.  Bean,  ii.  76. 

V.  Beckwith,  ii.  206. 

V.  Bierer,  ii.  506,  507. 

V.  Bowman,  iii.  278. 

V.  Buckner,  ii.  136,  248. 

V.  Chapin,  iii.  149. 

V.  Chadwick,  i.  527,  528,  534. 

V.  Daniel,  i.  360. 

V.  Hoyt,  iii.  152. 

V.  Keen,  iii.  410. 

V.  Kelly,  iii.  138,288,  297,  316, 

317,  324. 
V.  McDaniel,  i.  349,  374,  388. 
V.  McLeod,  ii.  225. 
V.  Morrison,  iii.  76. 
V.  Norman,  iii.  155. 
V.  Rossignol,  i.  439. 
V.  Underwood,  iii.    449,  493, 

495,  496. 
V.  Wilson,  iii.  71, 103,  254, 404. 
Morrow  v.  Scott,  iii.  16. 

V.  Willard,  iii.  399,  421. 
Morse  y.  Aldrich,  i.  500;   ii.  288,  287; 
iii.  118. 
V.  Carpenter,  iii.  263,  264. 
V.  Churchill,  iii.  137. 
V.  Copeland,  i.  629,  635,  637,  639; 

ii.  372. 
V.  French,  i.  7. 
V.  Goddard,  i.  239,  490,  561,  563, 

586 ;  ii.  138. 
r.  Maddox,  1.  538. 
V.  Marshall,  iii.  386. 
V.  Roberts,  i.  565. 
V.  Shattuck,  ii.  394. 
V.  Williams,  ii.  323. 
Morton  v.  Barrett,  ii.  467,  496. 
V.  Blankenship,  iii.  197. 
V.  Edwin,  iii.  230. 
V.  Noble,  i.  2-50. 
V.  Reeds,  iii.  223. 
V.  Woods,  i.  474,  586. 
Mosby  V.  Mosbv,  ii.  510. 
Mosely  v.  Marshall,  i.  123  ;  ii.  199. 
Moses  V.  Murgatroyd,  ii.  215. 
Mosher  v.  Mosher,"i.  200,  290. 
Moshier  v.  Reding,   i.    449,    558,  662, 

603. 
Mosley  v.  Mosley,  ii.  638. 
Moss  V.  Gallimore,  ii.  137. 
V.  Green,  ii.  60. 
V.  Riddle,  iii.  299. 
V.  Scott,  iii.  156. 


Ixxxii 


TABLE   OF   CASES   CITED. 


Moss  V.  Sheldon,  Hi.  438. 
V.  Spear,  iii.  229. 
V.  Warner,  i.  345,  406,  420,  429 ; 
ii.  253. 
Motley  V.  Blake,  i.  682. 
Mott  V.  Clark,  ii.  148. 

V.  Palmer,  i.  4,  17,  30 ;   iii.  391, 
449,  459,  473. 
Moulton  V.  Robinson,  i.  572,  575,  578. 
Mounce  v.  Byers,  ii.  85,  88,  93. 
Mountjoy's  case,  ii.  378. 
Mountnoy  r.  Collier,  i.  568. 
Movan  v.  Hays,  ii.  503. 
Mowry  v.  Sheldon,  ii.  340. 
Mayer  v.  McCullough,  iii.  195. 
Moynahan  v.  Moore,  ii.  173. 
Mucklcston  v.  Brown,  iii.  532. 
Mugford  V.  Richardson,  i.  613,  625. 
Muir  V.  Cross,  ii.  93. 
Muldrow  r.  Jones,  i.  622. 
Mullanphy  v.  Simpson,  ii.  175. 
Mull  any  v.  Mullany,  i.  169. 
Mullen  V.  Strieker,  ii.  346. 
Muller  V.  Boggs,  i.  665. 
MuUikin  v.  Mullikin,  ii.  94. 
Mumford  v.  Brown,  i.  538,  664 ;  ii.  366. 

v.  Wliiting,  i.  629,  630,  633. 
MummA--  V.  Johnston,  iii.  220. 
Municipality  v.  Orleans  Cotton  Press, 

iii.  60. 
Munn  r.  Worrall,  iii.  390. 
Munneslvn  i'.  Muimeslyn,  i.  182. 
Munroe  y.  Luke,  i.  58,  657,  661,  683. 
V.  Stickney,  i.  683 ;  iii.  388. 
V.  Walbridge,  i.  682. 
V.  Ward,  iii.  127. 
Munsell  v.  Carew,  i.  575. 
Murdock  i).  Chapman,  ii.  115,  117;  iii. 
429. 
V.  Gilchrist,  iii.  376,  377. 
V.  Hushes,  ii.  484,  492,  493. 
r.  Ratcliff,  i.  466. 
Murdock's  case,  ii.  136. 
Murphy  v.  Callev,  ii.  43,  45,  48. 

V.  Campbell,  iu.  387,  388,  396, 

405. 
V.  Cranch,  i.  428. 
V.  Nathan,  ii.  474  ;  iii.  324. 
V.  Springer,  iii.  153. 
Murray  v.  Biirney,  ii.  152. 
V.  Emmons,  i.  456. 
V.  Hail,  i.  660. 
V.  Harway,  i.  471,  483. 
V.  Shankin,  i.  450. 
V.  Smith,  iii.  489. 
V.  Stair,  iii.  300. 
V.  Walker,  ii.  43, 103. 
Muskett  V.  Hill,  i.  629. 
Muskingum  Turnpike  v.  Ward,  iii.  265 
Mussey  v.  Holt,  i.  517  ;  iii.  307. 
V   Sanborn,  680. 
V.  Scott,  i.  626  ;  iii.  278. 
Mutton's  case,  ii-  615. 
Mutual  Ins.  Co.  v.  Deale,  ii.  474. 
Myers  v.  Eord,  i.  364,  404. 


Myers  v.  Gemmel,  ii.  305,  345,  347. 
V.  Myers,  ii.  552. 
V.  Ross,  iii.  316. 
V.  Sanders,  iii.  249. 
V.  White,  ii.  97,  99,  102,  137. 


N. 

Nagle  V.  Macy,  ii.  107,  109,  118. 
Naglee  v.  Ingersoll,  i.  565. 
Nailer  v.  Stanley,  ii.  205. 
Nairn  v.  Prowse,  ii.  90. 
Napier  v.  Bulwinkle,  ii.  324,  347,  358, 
360,  362.  ^ 

V.  Darling,  i.  497. 
Napper  v.  Saunders,  ii.  566,  570,  585. 
Nary  v.  Merrill,  iii.  337. 
Nash  V.  Cutler,  ii.  511. 

V.  Peden,  ii.  325,  330. 
V.  Spofford,  iii.  114. 
Nason  v.  Allen,  i.  237. 

i;.  Grant,  ii.  62;  iii.  324. 
Nave  V.  Berry,  i.  492,  517,  535,  536,  546. 
Nazareth  Inst.  v.  Lowe,  i.  208 ;  ii.  88. 
Neale  v.  Hagthorp,  ii.  224,  229. 
V.  Mackensie,  i.  530. 
V.  Neale,  iii.  236. 
Needham  v.  Allison,  i.  577. 
V.  Bronson,  i.  332. 
V.  Judson,  iii.  258,  429. 
Neel  V.  Neel,  i.  144. 
Neeley  v.  Butler,  i.  174,  175. 
Negley  v.  Morgan,  i.  504. 
Neill  V.  Keese,  ii.  480. 
Neilson  v.  Lagow,  ii.  495. 
Neimcewicz  v.  Gahn,  ii.  47,  214,   218, 

219. 
Nellis  V.  Lathrop,  i.  519. 
Nelson  v.  Butterfield,  iii.  416. 
V.  Hall,  iii.  425. 
V.  Sims,  iii.  194. 
Nepeon  v.  Doe,  i.  621. 
Nerhoth  v.  Altliouse,  i.  565. 
Nettleton  v.  Sikes,  i.  14,  638. 
Nevell  V.  Nevell,  ii.  411. 
Neves  v.  Scott,  ii.  488,  666. 
Nevil  V.  Saunders,  ii  467,  468. 
Nevin's  Appeal,  i.  391. 
Nevitt  V.  Bacon,  ii.  183,  185. 
New  Bedford   Inst,   for   Sav.  v.  Fair- 
haven  Bank,  ii.  215. 
Newcomb  i\  Slebbins,  i.  518. 
New  Kngland  Jewelry  Co.  v.  Meriam, 

i.  398,  413;  ii.  171,  195,  196. 
New  Hampshire   Bank   v.   Willard,  ii. 

153,  187. 
New  Ipswich  Factory  v.  Batchelder,  ii. 

315. 
N.  J.  Zinc   Co.    V.  Boston  Franklinite 

Co.,  iii.  404. 
New  Orleans  v.  United  States,"  i.  65 ; 
iii.  57,  59. 


TABLE   OF   CASES   CITED. 


Ixxxiii 


New  York  Life  Ins.  Co.  v.  Milnor,  ii. 
307. 
V.  Smith,    ii. 
148. 
New  York,  &c.  R.R.  v.  Boston,  &c.  R.  R., 

ii.  296. 
Newall  V.  Wright,  i.  518 ;  ii.   100,  101, 

139,  162,  182,  260. 
Newbold  v.  Ridgeway,  i.  282. 
Newburgh  Turnpike   Co.  v.  Miller,  ii. 

294,  295. 
Newcomb  v.  Bonham,  ii.  4-3,  62,  63. 
V.  Davey,  ii.  251. 
V.  Harvey,  i.  520. 
V.  Presbrey,  iii.  113. 
V.  Ramer,  i.  574. 
V.  Stebbins,  iii.  6. 
Newell  V.  Hill,  i.  486  ;  iu.  312,  463. 
Newhall  v.  Burt,  ii.  54. 

V.  Ireson,  iii.  411,  420. 

V.  Lynn  Savings  Bank,  i.  252 ; 

"ii.  71,  174.  255,  260. 
V.  Pierce,  ii.  61. 
V.  Wheeler,  i.  83  ;  ii.  467,  491, 
495 ;  iii.  126,  264. 
Newkirk  v.  Newkirk,  ii.  85. 
Newland  v.  Newland,  ii.  720. 

V.  Sheplierd,  iii.  530. 
Newman  v.  Chapman,  ii.  147,  168,  169. 
V.  Edwards,  iii.  82. 
V.  Jackson,  ii.  79. 
V.  Rutter,  i.  570,  571. 
V.  Samuels,  ii.  78. 
Newmarket  v.  Smart,  ii.  511 ;  iii.  162. 
Newton  v.  Cook,  i.  227,  234,  298,  299 ; 
ii.  175. 
V.  Eddy,  iii.  411. 
V.  Harland,  i.  613,  620,  622. 
V.  McLean,  ii.  89,  485,  520. 
V.  Newton,  i.  660. 
V.  Sly,  ii.  103. 
Nice's  Appeal,  ii.  146. 
Nicholas  v.  Chamberlain,  ii.  314. 
V.  Purczell,  i.  348,  385. 
NichoU  V.  Dupon,  iii.  16. 

V.  N.  Y.  &  Erie  R.  R.,  i.  496 ; 
ii.  11,  14,  739. 
Nicholls  V.  Peak,  ii.  529. 
Nichols  V.  Baxter,  ii.  230,  233. 
V.  Cabe,  ii.  51. 
V.  Denny,  i.  645;  ii.  618. 
V.  Nichols,  i.  682. 
V.  Luce,  ii.  333. 

V.  Reynolds,  ii.  51, 169  ;  iii.  318. 
V.  Saunders,  i.  522. 
V.  Smith,  i.  655. 
V.  Thornton,  ii.  480. 
V.  Williams,  i.  591,  606. 
Nicholson  v.  Halsey,  ii.  516 ;  iii.  247. 

V.  Munigle,  i.  526,  595. 
Nickells  v.  Atherstone,  i.  552,  612. 
Nickerson  r.  Buck,  iii.  505,  506. 
Nicklin  v.  Williams,  ii.  362,  369. 
Nicoll  V.  N.  Y.  &  Erie  R.  R.,  i.  496 ;  ii. 
11,  14,  15,739. 


NicoTl  V.  Walworth,  ii.  530. 
Nicolls  V.  Sheffield,  ii.  558. 
Niedelet  v.  Wales,  i.  535. 
Nightingale  y.  Burrell,  i.  10-5,   112;  ii. 
683,  684,  688,  691,  696, 
709. 
V.  Hidden,  i.   166 ;  ii.  439, 
470 ;  iii.  439,  440. 
Niles  V.  Nye,  i.  227,  232. 
V.  Patch,  iii.  418. 
V.  Sawtell,  iii.  470. 
Nims  V.  Palmer,  iii.  187. 
Nixon  w.  Porter,  iii.  138. 
Noble  V.  Bosworth,  i.  24  ;  iii.  392. 
V.  Enos,  iii.  511. 
V.  Googins,  iii.  492. 
V.  Hook,  i.  368. 
V.  McFarland,  i.  658. 
V.  Sylvester,  i.  22. 
Noel  V.  Ewing,  i.  187,  269. 

V.  Jevon,  i.  204. 
Noonan  v.  Orton,  i.  500. 
Norcross  v.  Norcross,  ii.  168. 
Norfleet  i'.  Cromwell,  ii.  286. 
Norfolk,  Duchess  of,  v.  Wiseman,  i.  682. 
Norfolk's  (Duke  of)  case,  ii.  722,  724, 

726. 
Norman  v.  Bellman,  i.  423. 
V.  Burnett,  ii.  503. 
V.  Wells,  i.  500 ;  ii.  288. 
Norris  v.  Clark,  i.  325. 

V.  Harrison,  i.  127. 

V.  Johnson,  ii.  491. 

V.  Laboree,  ii.  16. 

V.  Milner,  ii.  14. 

V.  Morrill,  i.  611. 

V.  Morrison,  i.  389  ;  ii.  207. 

V.  Moulton,  i.  361,  365,  374.  375, 

389,  401,  414  ;  ii.  175. 
V.  Wilkinson,  ii.  83. 
Norris'  Appeal,  iii.  237,  403. 
North  V.  Barnum,  i.  565,  570,  571. 
V.  Nichols,  i.  596. 
V.  Philbrook,  i.  83. 
V.  Shearn,  i.  365,  403. 
Northam  v.  Hurley,  ii.  336,  358. 
Northampton  Mills  v.  Ames,  ii.  101, 112, 

138. 
Northcote  v.  Duke,  ii.  22. 
Northcutt  V.  Whipp,  i.  257,  261,  262, 

264. 
Northern  Bank  of  Kentucky  v.  Roosa, 

i.  463. 
Northrop  v.  Sumney,  iii.  408. 
Northrup  v.  Brehnier,  iii.  321. 
Northy  v.  Northy,  ii.  101,  121,  246. 
Norton  v.  Babcock,  iii.  495. 
V.  Cooper,  ii.  228. 
I'.  Frecker,  i.  121. 
V.  Jackson,  iii.  474. 
V.  Leonard,  ii.  434,  467,  527  ;  iii. 

264. 
V.  Norton,  ii.  495. 
V.  Saunders,  iii.  101. 
V.  Stone,  ii.  531 


Ixxxiv 


TABLE    OP    CASES    CITED. 


Norton  v.  Webb,  ii.  112. 

Norvell  i*.  Jolinson,  ii.  92. 

Norwich,  City  of,  v.  Hubbard,  ii.  128, 

1G5. 
Norwood  V.  Fairservice,  iii.  24G. 

V.  Morrow,  i.  236, 245, 280,305. 
Notte's  Api)eal,  ii.  92. 
Nottingiiani  v.  Calvert,  i.  251. 

V.  Jennings,  ii.  703. 
Nourse  v.  Meriani,  ii.  582. 

r.  Nourse,  iii.  91. 
Noyes  v.  Clark,  ii.  64. 
V.  Dyer,  iii.  152. 
V.  Morrill,  iii.  428. 
I'.  Sturdevant,  ii.  168,  184. 
Nudd  V.  Hobbs,  ii.  369 ;  iii.  419. 
Nugent  r.  Kiley,  i.  486;  ii.  43,  56,  62, 

172;  iii.  312. 
Nunnally  v.  White,  iii.  107,  115,  498. 
Nuttall  V.  Brace  well,  iii.  340. 
Nutter  V.  Eussell,  ii.  715. 
Nutting  V.  Dickinson,  iii.  376. 

V.  Herbert,  iii.  317,  492. 


o. 


O'Bannon  r.  Paremoiir,  iii.  109. 
O'Brien  v.  Brietenbach,  i.  468. 
V.  Capwell,  i.  544. 
V.  Kusterer,  i.  5. 
V.  Young,  i.  410. 
O'Connor  v.  Daily,  i.  491. 
O'Donnel  r.  Kelsey,  iii.  430. 
O'Dougherty  v.  Aldrich,  i.  681. 
O'Fallon  v.  Dogvrett,  iii.  413. 
O'Ferral  i'.  Simplot,  i.  188,  191. 
O'Hanlon  r.  Den,  iii.  48. 
O'Hara  v.  Kichanlson,  iii.  130, 148,  152. 
O'Keefe  v.  Calthorpe,  ii.  513. 

V.  Kennedy,  i.  483. 
O 'Kelly  V.  O 'Kelly,  iii.  288,  300,  309. 
O'Linda  v.  Lothrop,  iii.  99,  421. 
O'Neal  V.  Robinson,  iii.  276. 
O'Neil  V.  Vanderburg,  iii.  115. 
Oakes  v.  Chalfont,  ii.  626,  708,  727. 

V.  Marcy,  iii.  107. 

V.  Monroe,  i.  607. 
Oakman  v.  Dorchester,  i.  6. 
Oates  V.  Cooke,  ii.  494,  495. 
Oatman  v.  Fowler,  iii.  148. 
Obert  V.  Obcrt,  i.  679  ;  ii.  524. 
Odell  V.  Odell,  iii.  522. 
V.  Wa-ke,  i.  503. 
Odiorne  v.  Lyford,  i.  660. 
V.  Mason,  iii.  315. 
Odlin  V.  Gove,  iii.  78,  79,  83. 
Offutt  V.  Scott,  i.  670. 
Ogden  V.  Gibbons,  ii.  294. 

V.  Grant,  ii.  56. 

V.  Lucas,  i.  10. 

V.  Torterfield,  iii.  405. 

I'.  "Stock,  i.  5. 
Ogden's  Appeal,  ii.  598. 


Ohio  Life  Ins.  Co.  v.  Ledj-ard,  iii.  324. 

V.  Winn,  ii.  214. 
Ohling  V.  Luitjens,  ii.  251. 
Oke.«on  v.  Patterson,  ii.  322,  330  ;  iii.  58, 

54. 
Okison  V.  Patterson,  ii.  430,  446,  447 ; 

iii.  370. 
Gland's  case,  i.  9,  134,  135. 
Olcott  V.  Wing,  i.  668. 
Oldenbaugh  v.  Bradford,  ii.  62. 
Oldham  v.  Hal  ley,  ii.  60. 

V.  Henderson,  i.  329. 
V.  Sale,  i.  223,  246. 
Olds  V.  Cummings,  ii.  247. 
Oliver  v.  Dougherty,  ii.  477. 

V.  Piatt,  ii.  493,  523 ;  ui.  480. 
V.  Stone,  iii.  290,  294. 
Olmstead  v.  Elder,  ii.  117. 

V.  Niles,  i.  11,  447. 
Olney  i'.  Hull,  ii.  551,  561,  565. 
Olson  V.  Nelson,  i.  345,  414 ;  ii.  62. 
Onley  v.  Gardiner,  ii.  323,  324,  326,  327. 
Ontario  Bank  c  Mumford,  ii.  491. 
Opdyke  v.  Stephens,  iii.  403,  424. 
Orby  V.  Trigg,  ii.  63. 
Ord'r.  McKee,  ii.  122. 
Orford  v.  Benton,  i.  175. 
Oriental  Bank  v.  Haskins,  iii.  334. 
Orlenns  v.  Chatham,  ii.  490,  504. 
Orleans  Nav.  Co.  v.  Mayor,  &c.,  ii.  300. 
Orman  v.  Day,  ii.  363. 

V.  Orman,  i.  424. 
Ormond  v.  Martin,  iii.  137,  162. 
Ormond's  case,  ii.  616. 
Ormsby  v.  ihmsen,  iii.  77,  79. 

V.  Tarascon,  ii.  76. 
Orr,  Matter  of,  i.  367,  382. 

V.  Hadley,  ii.  Ill,  162;  iii.  88,  427. 
V.  Hodgson,  i   74. 
V.  HoUidays,  i.  173. 
V.  Quimby,  iii.  213. 
V.  Shroft,  i.  359. 
Ortman  ;;.  Dixon,  ii.  380. 
Orton  V.  Knab,  ii.  472. 
Osborn  v.  Carr  ii.  150. 
Osborne  v.  Ballew,  iii.  154. 
V.  Endicott,  iii.  102. 
V.  Horine,  i.  246,  277. 
V.  Widenhouse,  iii.  16. 
Osboum  V.  Rider,  iii.  282. 
Osbrey  v.  Bury,  ii.  647. 
Osgood  V.  Abbott,  ii.  16  ;  iii.  98. 
V.  Franklin,  ii.  662,  663. 
V.  Howard,  i.  4. 
V.  Thompson  Bank,  ii.  50. 
Oskey  v.  Hicks,  iii.  281. 
Osman  v.  Sheafe,  ii.  417. 
Osterhout  v.  Shoemaker,  i.  237;  iii.  92. 
Ostrander  v.  Spickard,  i.  324. 
Oswego  Falls  Bridge  v.  Fish,  ii.  297. 
Otis  V.  Parshley,  i.  195. 
V.  Smith,  i..  17. 
V.  Thompson,  i.  573. 
V.  Warren,  i.  280. 
Ottawa  Plank  Road  v.  Murray,  ii.  G4. 


TABLE   OF    CASES   CITED. 


Ixxxv 


Ottman  v.  Moak,  ii.  214. 
Ottumwa  Lnd^e  r.  Lewis,  ii.  366. 
Otway  V.  Hutlson,  i.  224. 
Outcalt  V.  Ludlow,  iii.  146,  162. 
Outtan  V.  Mitchell,  ii.  87. 
Overdeer  v.  Lewis,  i.  599,  613,  G22. 
Overfiekl  v.  Christie,  iii.  145,  147,  452. 
Overman  v.  Kerr,  iii.  282. 

V.  Sanborn,  i.  498,  587. 
Overseers,  &c.,  v.  Sears,  i.  85. 
Overstreet  v.  Bate,  iii.  163. 
Overton  r.  Bigelow,  ii.  51. 
Owen  V.  De  Beauvoir,  ii.  290. 

V.  Field,  i.  632 ;  ii.  25,  26  ;  iii.  63, 
389. 

V.  Hyde,  i.  130,  143. 

V.  Morton,  i.  657  ;  iii.  142,  144. 

V.  Peacock,  i.  266,  276. 

V.  Perry,  iii.  243. 

V.  Robbins,  i.  224,  239. 

V.  Slatter,  i.  254. 
Owens  V.  Jackson,  iii.  185. 

V.  Missionary  Society,  iii.  518. 
Owings  V.  McClain,  i.  686. 
Ozmun  y.  Reynolds,  ii.  185. 


P. 

P.  &  M.  Bank  v.  Dundas,  ii.  203,  206. 
Pace  1-.  Chadderdon,  ii.  106,  264. 
Packard  v.  Ames,  ii.  4,  619. 
Packer  v.  Rochester  &   Syr.   R.  R.,  ii. 
103.  108,  173,  239,  241. 
V.  Welsted,  iii.  387. 
Padelford  v.  Padelford,  i.  130,  131,  142, 

143,  309. 
Page  I'.  DePuy,  i.  626. 

V.  Foster,  ii.  57,  229. 

V.  Hayward,  i.  98. 

V.  Kinsman,  i.  558. 

V.  Page,  i.  246,  278,  335. 

V.  Palmer,  ii.  8. 

V.  Parr,  i.  534. 

V.  Pierce,  ii.  121,  122,  127. 

V.  Robinson,  ii.  100, 101,  134,  244. 

V.  Webster,  i,  687. 

V.  Wight,  i.  618. 
Page's  case,  iii.  48. 
Paige  V.  Sherman,  iii.  375. 
Paine  v.  Boston,  ii.  347. 

V.  French,  ii.  122. 

V.  Smith,  ii.  82. 

V.Woods,  i.  4;  ii.   165;  iii.  342, 
410,  416,  420. 
Paine's  case,  i.  166,  261. 
Painter  v.  Henderson,  ii.  525. 

V.  Pittsburg,  i.  540. 
Pakenhani's  case,  ii.  284. 
Palairit's  Appeal,  iii.  214. 
Palethorp  v.  Bergner,  i.  478. 
Palmer  y.  Bowker,  i.  568,  582. 

V.  Edwards,  i.  508,  511,  512,  515. 
V.  Fleshees,  ii.  360,  361. 


Palmer  v.  Fletcher,  ii.  305,  306,  315. 
V.  Foote,  ii.  164. 
V.  Forbes,  i.  16  ;  ii.  158. 
V.  Fowley.  ii.  125,  244,  269. 
V.  Hicks,  iii.  419. 
V.  Mead,  ii.  2.j8. 
V.  Mulligan,  iii.  413. 
V.  Oakley,  ii.  485. 
V.  Stevens,  ii.  142. 
V.  Wetmore,  i.  531. 
V.  Yager,  ii.  258. 
Palmer's  (Sir  Thomas)  case,  iii.  348. 
Palmes  v.  Danby,  ii.  174. 
Pan  ton  v.  Holland,  ii.  859,  360. 

V.  Robart,  i.  28. 
Papendick  v.  Bridgwater,  iii.  427. 
Paradine  v.  Jane,  i.  528,  535. 
Pardee  v.  Lindley,  i.  370,  408,  409. 
Pargeter  ?\  Harris,  ii.  169. 
Pargoud  v.  Tourne,  i.  491. 
Paris  V.  Hulett,  ii.  242. 
Parish  v.  Gates,  ii.  50. 

V.  Gilmanton,  ii.  165. 
V.  Ward,  iii.  17. 
V.  Whitney,  ii.  286  ;  iii.  462. 
Park  V.  Baker,  i.  26. 

V.  Pratt,  iii.  330,  403.      ♦ 
Parke  v.  Kiihara,  i.  665. 
V.  Mears,  iii.  276. 
Parker  v.  Anderson,  ii.  31. 

V.  Barker,  i.  26 ;  ii.  130 ;  iii.  77. 
V.  Baxter,  ii.  165. 
V.  Bennett,  iii.  395,  429. 
V.  Boston  &  M.  R.  R.,  ii.  356. 
V.  Brown,  iii.  453,  496. 
V.  Chambliss,  i.  157. 
V.  Clairborne,  iii.  194. 
V.  Converse,  ii.  512,  520,  552. 
V.  Dean,  i.  388,  414,  425. 
V.  Foote,  ii.  313,  319,  322,  324, 
330,  344,  345,  347  ;  iii.  52. 
V.  Foy,  ii.  89 ;  iii.  323,  375. 
V.  Framinghara,  iii.  421. 
V.  Hardey,  i.  276. 
V.  Hill,  iii.  294. 

V.  Kane,  iii.  306,  307,  399,  425. 
V.  Mercer,  ii.  122. 
V.  Mitchell,  ii.  328. 
V.  Murphy,  i.  279. 
V.  Nichols,  ii.  417,  441 ;  iii.  373. 
V.  Nightingale,  ii.  12,  309. 
V.  Obear,  i.  302. 

V.  Parker,  i.  285,  288,   305 ;  ii. 
667,  688,  690,  696  ;  iii.  149, 
293. 
V.  Props.    Locks,   &c.,  iii.    Ill, 

144,  331. 
V.  Raymond,  i.  560. 
V.  Smith,  iii.  99. 
V.  Staniland,  iii.  346. 
V.  Webb,  ii.  281. 
Parkliurst  v.  Cummings,  ii.  186. 
V.  Smith,  ii.  -54,7,  568. 
V.  Van  Cortland,  ii.  504  ;  iii. 
235,  237. 


IXXXVl 


TABLE   OF    CASES   CITED. 


Parkins  v.  Coxe,  i.  141,  142,  143. 

V.  Dunham,  ii.  339,  343,   870, 
371. 
Parkman  v.  Welch,  ii.  178,  201,  202,  206, 

211 ;  iii.  330. 
Parks  V.  Bo.'iton,  i.  528. 
V.  Hall,  ii.  43. 
V.  Loomis,  iii.  399,  402. 
V.  Reilly,  i.  372,  380. 
Parmelee  v.  Simpson,  iii.  284,  296,  328. 
Parmenter  v.  Webber,  i.  473,  510,  615. 
Parmentier  v.  Gillespie,  ii.  156. 
Parret  v.  Shaubhut,  ii.  53. 
Parr}'  v.  Bowfii,  ii.  6iJ9. 
Varsuas  v.  lioyd,  i.  645,  648. 
V.  Camp,  i.  19,  638. 
V.  Hughes,  ii.  136. 
V.  Livingston,  i.  348. 
V.  Smith,  iii.  345. 
V.  Welles,  ii.  96,  99,  100,  116, 

120,  128,  171. 
V.  Winslow,  i.  123  ;  iii.  541. 
Partington  w.  Woodcock,  ii.  138. 
Partridge  v.  Bere,  ii.  168. 

V.  Colegate,  i.  653. 
V.  Dorsey,  i.  106,  107,  111. 
.V.  Hatch,  iii.  453,  493. 
V.  McKinney,  iii.  317. 
V.  Scott,  ii.  359,  360. 
Patchin  v.  Dickerman,  i.  551. 
Pattan  v.  Wagner,  i.  678. 
Patten  v.  Dcshon,  i.  474,  493,. 495,  496, 
497,  498,  503,  510,  520. 
V.  Moore,  iii.  317. 
V.  Pearson,  ii.  73,  75,  120,  242. 
Patterson  v.  Arthur,  iii.  462. 
V.  Blake,  i.  670. 
V.  Boston,  i.  528. 
V.  De  la  Ronde,  iii.  316. 
V.  Esterling,  iii.  78. 
V.  Keystone  Min.  Co.,  ii.  380. 
V.  Kreig,  i.  408,  409. 
V.  Pease,  iii.    107,    111,    112, 

117,  276. 
r.  Robinson,  i.  340. 
V.  Winn,  i.  36. 

V.  Yeaton,  ii.  62 ;  iii.  306,  307. 
Pattison  v.  Hull,  ii.  121,  122. 
Pattison's  Appeal,  i.  10,  11, 14;  iii.  346. 
Patton  V.  Axley,  i.  601. 
V.  Page,  ii.  198. 
V.  Stewart,  ii.  87,  88. 
Patty  V.  Pease,  ii.  205,  211. 
Paul  V.  Carver,  iii.  421. 
V.  Chouteau,  ii.  478. 
V.  Fulton,  ii.  485. 
V.  Nurse,  i.  503. 
Paulke  V.  Cooke,  iii.  335. 
Pawlet  V.  Clark,  i.  36. 
Paxon  V.  Leflferts,  ii.  606. 

V.  Paul,  ii.  128. 
Paxton  V.  Harrier,  ii.  202,  211. 
Pay's  case,  ii.  694. 
Payne  v.  Attlebury,  ii.  93. 

V.  Harrell,  ii.  89,  94,  245. 


Payne  v.  Payne,  i.  168 ;  iii.  210, 

r.  Itogers,  i.  539. 
V.  Sheddon,  ii.  341. 
Peabody  v.  Eastern  Metliodist  Soc,  iL 
512. 
V.  Harvard  College,  ii.  520. 
V.  Hewett.  iii.  130,  263. 
V.  Minot,  i.  653,  655,  679. 
V.  Tarbell,  ii.  432,  480,  501. 
Pearce  v.  Ferris,  i.  621. 

V.  McClenaghan,  ii.  373. 
V.  Savage,  i.  671;    ii.   128,  172, 
496,  548,  553. 
Pearl  v.  McDowell,  iii.  248. 
Pearson  v.  Seay,  ii.  57. 
Pease  i\  Allis,  iii.  506. 
Peaslee  v.  Gee,  iii.  403,  425. 
Peavey  v.  Tilton,  iii.  284,  291. 
Peay  v.  Peay,  i.  258. 
Peck  V.  Batchelder,  i.  22. 
V.  Carpenter,  i.  661. 
V.  Fisher,  i.  667. 
V.  Handey,  iii.  431. 
V.  Hensley,  iii.  474,  478,  488. 
V.  Ingersol,  i.  517. 
V.  Jones,  iii.  478. 
V.  Mallams,  iii.  319,  .398,  399. 
V.  Northrop,  i.  519. 
V.  Smith,  iii.  390. 
V.  Ward,  i.  657. 
Peck's  Appeal,  ii.  261. 
Pederick  v.  Searle,  iii.  164. 
Peebles  r.  Reading,  ii.  479,  481. 
Peek  V.  Jones,  i.  528. 
Peele  v.  Chever,  iii.  145. 
Pegnes  v.  Pegnes,  ii.  477. 
Peiffer  v.  Lytle.  ii.  475. 
Pelan  v.  DeBevard,  i.  365. 
Polham's  case,  ii.  407. 
Pell  V.  McElroy,  ii.  88. 
Pelletreau  v.  Jackson,  ii.  696. 
Pells  V.  Brown,  ii.  545,  682,  707. 
Pelton  V.  Farmin,  ii.  258,  259. 
Pemberton  v.  Pemberton,  i.  323. 
Pembroke  v.  Allenstown,  ii.  474. 
Penderson  v.  Brown,  ii.  165. 
Pendleton  v.  Pomeroy,  i.  219,  222. 

V.  Vandevier,  i.  120. 
Penhey  v.  Hurrell,  ii.  588,  589. 
Penhallow  v.  Dwight,  i.  11,  14,  132. 
Penn  v.  Klyme,  iii.  189. 

V.  Railway  Co.,  ii.  178,  179. 
Pennant's  case,  i.  484. 
Penne  v.  Peacock,  ii.  444. 
Pennel  v.  Weyant,  iii.  292. 
Penniman  v.  Cole,  iii.  333,  3.37. 
V.  Hollis,  ii.  125,  245. 
Pennock's  Estate,  ii.  .506. 
Pennsylvania  Co.  v.  Dovey,  iii.  285,  295. 
Penruddock's  case,  ii.  370. 
Pensoneau  v.  Pulione,  ii.  242. 
Penton  v.  Kobart,  i.  11,  29,  133. 
Pentz  V.  Simonson,  iii.  260. 
People  V.  Bostwick,  iii.  283,  .303. 

V.  Canal  Appraisers,  iii.  410, 413. 


TABLE   OF   CASES    CITED. 


Ixxxvii 


People  V.  Canal  Conimis'rs,  iii.  412,  415. 
V.  Clarke,  iii.  159. 
V.  Conklin,  iii.  49. 
V.  Cutting,  iii.  48. 
V.  Darling,  i.  602,  613. 
V.  Eolsoni,  iii.  48,  188. 
.     V.  Gillis,  i.  451. 
V.  Haskins,  ii.  '276. 
V.  Henderson,  iii.  412. 
V.  Huinpliry,  iii.  213. 
V.  Law,  iii.  310,  423. 
V.  Livingston,  iii.  185,  194. 
V.  Mayor,  iii.  212,  222,  331. 
V.  McClay,  i.  349,  360. 
V.  Morrill,  iii.  188. 
V.  Norton,  ii.  512. 
V.  Organ,  iii.  241. 
V.  Piatt,  iii.  410,  413. 
V.  Riekliert,  i.  599,  614. 
I'.  Salem,  i.  65. 
V.  Snyder,  iii.  281,  326. 
V.  Stiner,  i.  557. 
V.  Sturtevant,  ii.  295. 
V.  Supreme  Court,  ii.  64. 
V.  Utica  Ins.  Co.,  ii.  292. 
V.  Van  Rensselaer,  iii.  159,  188, 
189,  191. 
Perdue  v.  Aldridge,  iii.  322. 
Perkins,  Lessee,  v.  Dibble,  ii.  55,  129. 
V.  Nichols,  ii  475,  479,  480. 
V.  Pitts,  ii.  168. 
V.  Richardson,  iii.  260. 
V.  Sterne,  ii.  98,  106,  107,  118, 

122,  185. 
V.  Webster,  iii.  491. 
V.  Woods,  ii.  2.57. 
Perley  v.  Langley,  ii.  368. 
Perminter  v.  McDaniel,  iii.  240. 
Pernam  v.  Wead,  ii.  306. 
Perrin  v.  Blake,  ii.  602. 
V.  Calhoun,  i.  563. 
V.  N.  Y.  Cent.  R.  R.,  iii.  422. 
Perrine  v.  Perrine,  iii.  248. 
V.  Sargent,  i.  392. 
Perry  v.  Aldricli,  i.  126,  128,  525. 
V.  Binney,  iii.  428. 
V.  Carr,  i.  19,  577. 
V.  Davis,  i.  484. 
V.  Goodwin,  i.  283. 
V.  Hale,  iii.  542. 

V.  Kline,  i.  102,  106,  111 ;  iii.  109. 
V.  McHenry,  ii.  476,  477. 
V.  Meddowcroft,  ii.  59. 
V.  Perryman,  i.  322. 
V.  Price,  iii.  368,  371. 
V.  Walker,  i.  666. 
V.  Woods,  ii.  716. 
Perryman's  case,  iii  305. 
Person  v.  Merrick,  ii.  253,  254. 
Peter  v.  Beverly,  ii.  80,  509,  510,  651, 
652,  661,  663. 
i;.  Daniel,  ii.  358. 
V.  Kendal,  ii.  293. 
V.  Wright,  iii.  303. 
Peters  v.  Elkins,  ii.  138. 


Peters  v.  Field,  iii.  272. 

V.  Jamestown  Bridge,  ii.  118. 
V.  Jones,  ii.  492 ;  iii.  142, 165,  236. 
Peterson  v.  Clark,  ii.  45,  59,  135. 
V.  Edmonson,  i.  531,  535. 
V.  Hornblovver,  i.  406. 
Petre  v.  Espinasse,  ii.  462. 
Pettee  v.  Case,  ii.  67,  243 ;  iii.  100. 

y.  Hawes,  ii.  303 ;  iii.  432,  435, 441. 
Pettibone  v.  Edwards,  ii.  256. 
V.  Rose,  iii.  426. 
V.  Stevens,  ii.  220. 
Pettigrew  v.  Shirley,  iii.  201. 
Pettijohn  v.  Beasley,  i.  325. 
Pettingill  v.  Devin,  iii.  325. 

V.  Evans,  ii.  101,  134,  157. 
V.  Porter,  ii.  306,  321 ;  iii.  424. 
Pettit  V.  Joiinson,  ii.  79,  140. 
Petty  V.  Malier,  i.  173. 
Peyton  v.  Mayor  of  London,  ii.  362. 

V.  Stith,  i.  565. 
Phelan  v.  Clark,  ii.  492,  493. 
Phares  v.  Barbour,  ii.  214,  524. 
Pilaris  V.  Leachnian,  i.  272. 
Phalen,  Estate  of,  i.  428. 

V.  Olney,  ii.  121,  122. 
Phelps  V.  Blount,  iii.  120. 

V.  Chesson,  ii.  12,  17. 
V.  Conover,  i.  395 ;  ii.  91. 
V.  Jepson,  i.  644. 
V.  Kellogg,  iii.  201. 
V.  Phelps,  ii.  539 ;  iii.  298. 
V.  Rooney,  i.  364,  419. 
Pheni  v.  Popplewell,  i.  5-50. 
Phesey  v.  Vicary,  ii.  308. 
Philadelphia  v.  Girard,   ii.    702,    703, 

728  ;  iii.  519,  522. 
Philadelpliia    W.  &   B.  R.    R.    Co.   v. 

Howard,  iii.  293. 
Philadelphia    W.   &   B.    R.   R.  Co.  v. 

Woelpper,  ii.  41,  157,  167. 
Philbrick  u.  Evving,  iii.  395. 
Philbrook  v.  Delano,    ii.   86,    93,    475, 

481 ;  iii.  377. 
Philips  V.  Bank  of  Lewiston,  ii.  99,  106, 
114,  116,  122. 
V.  Crammond,  ii.  484. 
V.  Dashiel,  iii.  18. 
Philleo  V.  Smalley,  i.  363. 
Phillips  V.  Allen,  i.  155. 

-  V.  Bowers,  iii.  421,  422. 
V.  Covert,  i.  587,  606. 
V.  Doe,  i.  481. 
V.  Doolittle,  ii.  22. 
V.  Green,  iii.  249. 
V.  Houston,  iii.  290. 
V.  Hudson,  iii.  484. 
V.  Kent,  iii.  165. 
V.  Phillips,  ii.  551. 
V.  Rhodes,  iii.  55. 
V.  Rothwell,  i.  559. 
V.  Saunderson,  ii.  91. 
V.  Sherman,  i.  665. 
V.  Smith,  i.  141,  14.5,  147. 
V.  Springfield,  i.  408,  422,  C26. 


h.xxviu 


TABLE   OP   CASES   CITED. 


Phillips  V.  Stevens,  i.  506,  535. 

V.  Thompson,  ii.  *215;  iii.  235, 

237. 
V.  Tuilor,  i.  654,  655 ;  iii.  262. 
V.  Wiuslow,  i.  17 ;  ii.  158. 
Lessee  of,  v.  Kobertson,  i.  558. 
Phillips  Academy  v.  Kinjr,  ii.  519. 
Phinney  v.  Watts,  iii.  416. 
Phipard  v.  Mansfield,  ii.  557. 
Phipps  V.  Scultliorpe,  i.  558,  591. 

V.  State,  iii.  191. 
Piatt  V.  Hubbel,  i.  685. 

V.  Oliver,  i.  667 ;  ii.  484. 
V.  St.  Clair,  iii.  229. 
Pibus  V.  Mitford,  ii.  428,  430,  539. 
Pickard  v.  Perley,  i.  597,  598,  607,  609. 

V.  Sears,  iii.  76,  78. 
Pickering  v.  Langdon,  ii.  720. 
V.  Pickering,  iii.  542. 
V.  Staples,  iii.  387,  389. 
Picket  V.  Barron,  ii.  115,  148,  195. 

V.  Dowdall,  iii.  62. 
Pickett  V.  Peay,  i.  324. 
Pico  V.  Colombet,  i.  001,  662. 
Picot  V.  Page,  i.  646,  686. 
Pier  V.  Carr,  i.  528,  529. 

V.  Duff;  iii.  427. 
Pierce  v.  Armstrong,  iii.  380,  445. 
V.  Brew,  iii.  375. 
V.  Brown,  i.  562. 
V.  Chase,  i.  673. 
V.  Dyer,  ii.  365. 
V.  Emery,  ii.  157. 
V.  Farmer,  ii.  247. 
V.  George,  i.  23,  24. 
V.  Goddard,  i.  9. 
V.  Hall,  iii.  310. 
It.  Pierce,  ii.  477. 
V.  Potter,  ii.  164. 
V.  Kobinson,  ii.  50. 
V.  Sellick,  ii.  306,  307,  322. 
V.  Trigg,  i.  201. 
V.  Warnett,  i.  174. 
V.  Williams,  i.  273,  285. 
Pierre  v.  FernaLd,  ii.  322,  326,  829,  344, 

347  ;  iii.  378. 
Pierson  v.  Armstrong,  ii.  449  ;  iii.  271, 
368. 
V.  David,  ii.  93. 
V.  Turner,  iii.  158. 
Pifer  V.  Ward,  i.  208. 
Piggot  V.  Mason,  i.  500. 
Piggott  V.  Stratton,  i.  547. 
Pigot's  case,  iii.  281. 
Pike  V.  Brown,  i.  486. 
V.  Dyke,  iii.  205. 
V.  Galvin,  iii.  103,  112. 
V.  Goodnow,  ii.  113,  125,  127,  246. 
V.  Witt,  i.  621. 
Pillott  V.  Boosey,  i.  477. 
Pillow  V.  Roberts,  iii.  1-56,  226,  274. 
Pillsbury  v.  Moore,  i.  660. 
Pinch  V.  Anthonv,  ii.  42. 
Pincliain  v.  Colla'rd,  ii.  90,  93. 
Pindar  v.  Ainsley,  i.  652. 


Pine  I'.  Leicester,  i.  504,  522. 
Pinero  v.  Judson,  i.  451,  593. 
Pingrey  v.  Watkins,  i.  511,  523. 
Pinhorn  v.  Souster,  i.  587. 
Pinkerton  v.  Turnlin,  i.  368. 
Piiikliam  ?;.  (jcar,  i.  273. 
Pinkney  v.  Barrage,  iii.  148. 
Pinnington  v.  Galland,  ii.  306. 
Pinson  v.  Ivey,  ii.  484,  518. 

V.  Williams,  i.  251. 
Pintard  v.  Goodloe,  ii.  86,  87. 
Piper  V.  Smith,  i.  670. 

V.  Johnston,  i.  400,  414. 
Pipher  v.  Lodge,  iii.  151,  158. 
Piscataqua  Bridge  Co.  v.  N.  H.  Bridge 

Co.,  ii.  297. 
Pitcher  v.  Tovey,  i.  494,  503;  ii.  282. 
Pitt  V.  Petway,  ii.  524. 
Pitts  V.  Aldrich,  i.  251 ;  ii.  255. 

V.  Pitts,  i.  243. 
Pixley  V.  Bennett,  i.  247. 
Pizzala  v.  Campbell,  i.  352,  881. 
Place  V.  Fagg,  ii.  157. 
Plant  V.  James,  iii.  394. 
Planters'  Bank  v.  Davis,  i.  176. 

V.  Johnson,  iii.  210. 
Piatt  V.  Johnson,  ii.  352. 

V.  McClure,  ii.  63,  68.      ■ 
V.  Sleap,  i.  554. 
Platts  V.  Cady,  i.  419. 
Plattsburg  v.  P.  &  M.  Railroad,  i.  4. 
Playter  v.  Cunningham,  i.  488,  490. 
Pleasant  v.  Benson,  i.  609. 
Pledger  v.  Ellerbe,  i.  238. 
Plenty  u.  West,  ii.  467. 
Plumb  V.  Cattaraugus  Ins.  Co.,  iii.  83. 

V.  Tubbs,  ii.  9. 
Plumer  v.  Lord,  iii.  83. 

V.  Plumer,  i.  559,  577. 
Plumleigh  v.  Cook,  i.  496. 
Plunuuer  v.  Russell,  iii.  270,  280. 
Plunket  V.  Holmes,  i.  178,  197. 

V.  Penson,  ii.  164. 
Plush  V.  Digges,  i.  515. 
Plymouth  o.  Carver,  ii.  283 ;  iii.  462. 
Plympton  v.  Boston  Dispensary,  i.  124. 

V.  Converse,  iii.  109. 
Poage  V.  Chinn,  i.  656. 
Poe  V.  Hardie,  i.  390. 
Poignard  v.  Smith,  ii.  168 ;  iii.  148, 150, 

151. 
Poindexter  v.  Henderson,  i.  160,  161. 

V.  McCannon,  ii.  59. 
Polden  V.  Bastard,  iii.  396. 
Police  Jury  v.  Reeves,  ii.  7. 
Pollard  V.  Barnes,  ii.  328. 

V.  1) wight,  iii.  4-57,  459. 

V.  Hagan,  iii.  188,  191,  418. 

V.  Maddox,  iii.  384. 

V.  Pollard,  i.  323. 

V.  Shaffer,  i.  150,  499,  587. 

V.  Somerset  Ins.  Co.,  ii.  166. 
Pollen  I'.  Brewer,  i.  622. 
Pollock  V.  Kittrell,  i.  581. 

V.  Stacey,  i.  510. 


TABLE   OP    CASES   CITED. 


Ixxxis 


Polyblank  v.  Hawkins,  i.  330. 
Pomeroy  v.  Bailey,  iii.  335. 
!,•.  Buntings,  i.  367. 
V.  Winship,  ii.  260. 
Pomfret  v.  Ricroft,  ii.  302,  306,  307, 338, 
304 ;  iii.  386,  387,  485. 
V.  Windsor,  i.  591. 
Pomroy  v.  Rice,  ii.  186. 

V.  Stevens,  iii.  817. 
Pond  V.  Bergh,  ii.  714. 

V.  Clark,  ii.  180,  187. 
V.  Johnson,  i.  278. 
V.  Pond,  i.  685. 
Ponder  v.  Graham,  i.  192. 
Pool  V.  Alger,  ii.  367. 
V.  Blaikie,  i.  165. 
Poole  V.  Bentley,  i.  451. 

i).  Gerrard,  i.  381,  406. 
V.  Longueville,  i.  330. 
V.  Marshall,  ii.  201. 
V.  Morris,  i.  108. 
V.  Poole,  ii.  603. 
i;.  Whitt,  i.  563. 
Poole's  case,  i.  28. 
Poor  V.  Oakman,  i.  5,  6  ;  iii.  345. 

V.  Robinson,  iii.  95. 
Pope  V.  Biggs,  1.  526;  ii.  136,  188. 

V.  Devereux,  ii.  340,  342 ;  iii.  63. 
V.  Garrard,  i.  537. 
V.  Harkins,  i.  555,  562. 
V.  Hays,  ii.  260. 
V.  Henry,  iii.  162. 
V.  O'Hara,  ii.  340 ;  iii.  394. 
V.  Onslow,  ii.  180. 
Popkin  V.  Bumstead,  i.  231. 
Port  V.  Bobbins,  ii.  186,  215. 
Porter,  Goods  of,  iii.  527. 

V.  Bank  of  Rutland,  ii.  516. 
V.  Bleiler,  i.  521. 
V.  Bradley,  ii.  708. 
V.  Buckingham,  iii.  294. 
V.  Clements,  ii.  50,  250. 
V.  Doby,  ii.  487. 
V.  Dubuque,  ii.  89. 
V.  ¥ox,  ii.  704. 
V.  Green,  ii.  103,  106,  133. 
V.  Hill,  i.  685;  iii.  111,262. 
V.  King,  ii.  104. 
V.  Mayfleld,  i.  565. 
!J.  Perkins,  i.  085. 
V.  Pillsbur}',  ii.  242. 
V.  Seabor,  ii.  179,  20-3. 
V.  Swetnam,  i.  496;  ii.  281. 
Porter's  case,  ii.  086. 
Portington's  (Mary)  case,  ii.  24. 
Portis  V.  Parker,  i.  I(i4. 
Posey  V.  Budd,  i.  112;  iii.  18. 

V.  Cook,  ii.  467. 
Post  V.  Arnot,  ii.  172,  178. 
V.  Jackson,  i.  504. 
V.  Kearney,  i.  511. 
V.  Vetter,  i.  506,  538. 
Posten  V.  Posten,  iii.  336. 
Poth  V.  Austatt,  iii.  321. 
Potier  V.  Barclay,  i.  277. 


Potter  V.  Cromwell,  i.  25. 

i;.  Everitt,  i.  303  ;  iii.  373. 
V.  Gardner,  ii.  528. 
V.  Potter,  iii.  480. 
V.  Thornton,  iii.  517. 
V.  Titcomb,  iii.  16. 
V.  Wheeler,  i   199,  677. 
Potts  V.  Gilbert,  iii.  131,  192. 
Poultney  v.  Holmes,  i.  508. 
Powell  V.  Bagg,  ii.  326. 

V.  Brandon,  ii.  605,  607,  725,735. 
V.  Clark,  iii.  402,  491. 
V.  Glenn,  ii.  723. 
V.  Gossom,  i.  175. 
V.  Manson  Co.,  i.  24,  25,  204, 246, 
247,288,  289,  290,291,305; 
iii.  461. 
V.  Powell,  i.  302,  303. 
V.  Rich,  iii.  346,  392. 
V.  Simms,  ii.  346. 
V.  Smith,  ii.  185. 
V.  Williams,  ii.  164,  224. 
Power  V.  Shiel,  i.  319,  320. 
Powers  V.  Bergen,  iii.  212,  215,  216. 
V.  Dennison,  iii.  459. 
V.  McFerran,  iii.  325. 
V.  Russell,  iii.  294. 
Poweshiek  v.  Dennison,  ii.  76. 
Poyas  V.  Wilkins,  iii.  332. 
Pratt  V.  Ayer,  ii.  504,  505. 
V.  Bacon,  iii.  262. 
V.  Bank  of  Bennington,  ii.  196. 
V.  Brown,  iii.  187. 
V.  Farrar,  i.  585,. 586,  618,  627. 
V.  Felton,  i.  325. 
V.  Huggins,  ii.  175,  187. 
V.  Levan,  i.  524. 
V.  Myers,  iii.  336. 
V.  Ogden,  i.  629,  631. 
V.  Skolfield,  ii.  128,  172. 
V.  Thornton,  ii.  524. 
V.  Vanwyck,  ii.  89. 
Pray  v.  Great  Falls,  iii.  386. 

V.  Pierce,  ii.  417, 441 ;  iii.  141, 362 

Prentice  v.  Wilson,  i.  590. 

Presbyterian  Cong.  v.  Johnson,  ii.  527. 

Corp.  V.  Wallace,  ii.  206. 

Presbrey  v.  Presbrey,  i.  597,  657 ;    iii. 

398,  399. 
Pres'chbaker  v.  Feaman,  ii.  50. 
Prescott  V.  Ellingwood,  ii.  116. 
V.  Elm,  i.  607,  610. 
V.  Hawkins,  iii.  ;]82. 
V.  Nevers,  iii.  127,  144,  155. 
V.  Phillips,  ii.  339. 
V.  Prescott,  i.  354 ;  iii.  625. 
V.  Trueman,  iii.  448,  452,  456, 

460,  495. 
V.  Walker,  i.  204. 
V.  White,  ii.  3.52,  358 ;   iii.  388. 
V.  Williams,  ii.  352 ;  iii.  463. 
Presley  v.  Stribling,  ii.  523,  526. 
Prestman  v.  Baker,  iii.  289. 
Preston  v.  Briggs,  i.  437  ;  ii.  157. 
V.  Funnell,  ii.  710. 


xc 


TABLE   OF  CASES   CITED. 


Preston  v.  Hodges,  ii.  124. 
V.  Hull,  iii.  241. 
V.  Kobinson,  i.  654, 
Pretty  v.  Bickinoie,  i.  540. 
Prettyman  v.  VValston,  i.  126,  493. 

r.  Wilkey,  iii.  4y0. 
Prevost  u.  Gratz,  ii.  484. 
Prevot  V.  Lawrence,  i.  456. 
Price  V.  Brayton,  i.  12,  13. 
V.  Cutts,  ii.  53. 
V.  Huey,  iii.  211. 
V.  Hunt,  ii.  707. 
V.  Joiinston,  iii.  200. 
V.  Karnes,  ii.  50. 
V.  Pickett,  i.  126,  134. 
V.  P.  &  Ft.  W.  &  C.  R.  R.,  iii.  301, 

303,  305. 
V.  Price,  i.  18,  209. 
V.  Sisson,  ii.  467,  489,  542,  550, 

604,  605. 
V.  State  Bank,  ii.  262. 
V.  Taylor,  i.  113  ;  ii.  604,  605. 
Prichard  v.  Atkinson,  iii.  462. 
Prickett  v.  Parker,  iii.  18. 

V.  Ritter,  i.  599. 
Prickman  v.  Tripp,  ii.  355. 
Pride  v.  Lunt,  iii.  425. 
Priest  V.  Cummings,  i.  246. 
Priram  v.  Walker,  i.  655  ;  iii.  59,  416. 
Prince  v.  Case,  i.  631,  632,  634,  640. 

V.  Sisson,  ii.  448. 
Prindle  v.  Anderson,  i.  599,  606. 
Pringle  v.  Gaw,  i.  304. 

V.  Witten,  iii.  458. 
Prior  &  Convent  case,  ii.  284. 
Pritchard  v.  Brown,  ii.  394,  445,  480. 
Pritts  V.  Ritchie,  i.  224. 
Private  Road,  case  of,  ii.  299,  308 ;  iii. 

396. 
Probert  v.  Morgan,  ii.  665. 
Proctor  V.  Bath,  ii.  716. 
V.  Gilson,  i.  19. 
V.  Hodgson,  ii.  333. 
V.  Keitli,  i.  478. 
Prodgers  v.  Lanaham,  iii.  334. 
Proffitt  V.  Henderson,  i.  140,  142,  145. 
Prop.  Liverpool  Wharf  v.  Prescott,  iii. 

86,  88,  89. 
Prop,  of  No.  6  V.  McFarland,  i.  590 ;  iii. 

127. 
Proprietors,  &c.  v.  Lowell,  i.  17. 

V.  Nashua,  &e.    R.  R., 

iii.  135. 
V.  Springer,  i.  59. 
Prosser  v.  Parks,  ii.  381. 
Providence  Bank  v.  Billings,  iii.  222. 
Provost  V.  Calder,  i.  463. 
Pryor  v.  Coulter,  iii.  277. 

V.  Stone,  i.  363,  427. 
Puckett  V.  State,  iii.  48. 
Pue  V.  Pue,  ii.  323,  340;  iii.  53. 
Pugh  V.  Arton,  i.  29. 
V.  Bell,  i.  224. 
V.  Holt,  ii.  55. 
V.  Pugh,  ii.  484. 


PuUen  V.  Rianbard,  ii.  467,  468. 

V.  Bell,  i.  5. 
Punderson  v.  Brown,  ii.  162. 
Purcell  V.  Goshorn,  iii.  257. 

V.  Wilson,  i.  650. 
Purdy  V.  Huntington,  ii.  114,  118. 

c.  Purdy,  i.  634;  ii.  477. 
Purefoy  v.  Rogers,  i.  196;   ii.  687,  589, 
647,  680,  683,  688,  691,  692,  696,  700, 
703,  707,  708,  713;  iii.  95. 
Purinton  r.  No.  111.  R.  R.,  iii.  409. 
Purrington  ;;.  Pierce,  ii.  61. 
Purser  v.  Anderson,  ii.  189. 
Purvis  i.-.  Wilson,  i.  683. 
Putnam  v.  Bond,  iii.  404. 
V.  Dobbins,  ii.  89. 
V.  Putnam,  i.  213;  ii.  175. 
V.  Tuttle,  iii.  443. 
V.  Wise,  i.  149,  572,  573,  574. 
Putnam  School  v.  Fisher,  ii.  508;   iii. 

133. 
Putney  v.  Dresser,  i.  64.3,  644. 
Pybus  V.  Mitford,  ii.  428,  429,  599. 
Pye  V.  Gorge,  ii.  514. 
Pyer  v.  Carter,  ii.  305,  314,  317. 
Pynchon  v.  Lester,  i.  234,  298. 

V.  Stearns,  i.  131,  141. 
Pyne  v.  Dor,  i.  155. 


Q. 


Quackenboss  v.  Clarke,  i.  503, 504,  509, 

524. 
Quain's  Appeal,  ii.  282. 
Queen  v.  Northumberland,  iii.  393. 
Queen  Ann's  Co.  v.  I'ratt,  i.  208. 
Quiltman  v.  Custer,  ii.  605. 
Quinby  v.  Higgins,  iii.  15. 

V.  Manhattan  Co.,  i.  21,  24. 
Quinn  v.  Brittain,  ii.  228. 
Quint  V.  Little,  ii.  183. 
Quirk  V.  Thomas,  iii.  319. 


R. 

Rabe  v.  Fyler,  i.  648. 
Rabsuhl  r.  Lack,  iii.  375. 
Race  V.  Ward,  ii.  300,  368,  369. 
Rackley  v.  Sprague,  iii.  388. 
Radcliff's  Ex'r  v.  Mayor,  &c.,  ii.  356, 

360. 
Ragland  v.  Rosters,  i.  362. 

V.  The  .Justii^,  &c.,  ii.  97,  102, 
103. 
Rail  V.  Dotson,  ii.  72k 
Railroad  ;;.  Schu/mei  ,  iii.  412. 
Raines  v.  Corbin,  i.  323. 
Rakestraw  y.  Brewer,  ii.  120 
Ralls  V.  Hughes,  i.  266. 
Ralston  v.  Boody,  i.  468. 

I'.  Hughes,  ii.  165. 

V.  Ralston,  i.  211. 
Ramborger  v.  lugraham,  ii.  86. 


TABLE   OF    CASES    CITED. 


XCl 


Ramsay  v.  Marsh,  ii.  466 
Ramsdell  v.  F^merj',  ii.  481. 

v.  Ramsdell,  ii.  720 ;  iii.  529. 
I'.  Weiuworth,  iii.  540. 
Ramsey  v.  Merriam,  ii.  78. 
Rand  v.  Cartwright,  ii.  174. 
Randal  v.  Khveli,  i.  16  ;  ii.  157. 
Randall  v.  Cleaveland,  i.  157. 
V.  Keriger,  i.  190,  192. 
V.  McLaughlin,  ii.  318. 
V.  Phillips,  ii.  143,  482. 
V.  Randall,  iii.  436. 
V.  Ricii,  i.  549. 
V.  RussL'll,  ii.  725. 
V.  Saunderson,  ii.  346  ;  iii.  157. 
Randell  v.  Mallett,  ii.  203. 
Randolph  i'.  Doss,  i.  236. 
Rands  v.  Kendall,  i.  225. 
Rangley  v.  Spring,  iii.  75,  76,  99. 
Rankin  v.  Harper,  ii.  474,  475,  478. 
17.  Huskisson,  ii.  308. 
V.  Major,  ii.  118,  122. 
V.  Mortimere,  ii.  62. 
Rapalye  v.  Rajialye,  ii.  199. 
Rasdall  v.  Rasdall,  ii.  51. 
Rashi's  Appeal,  iii.  515. 
Rathbun  v.  Rathbnn,  iii.  294. 
Ratliflfy.  EUis,  ii.  481,  502. 
Raw  V.  Pate,  iii.  83. 
Rawley  v.  Holland,  ii.  413,  433. 
Rawlings  i\  Adams,  i.  160. 
Rawlins  v.  Battel,  i.  243,  291. 

V.  Turner,  i.  614. 
Rawlyn's  case,  i.  453;  iii.  91,  121. 
Rawson  v.  U.xbridge,  ii.  5. 
Rawstron  v.  Taylor,  ii.  351,  354. 
Ray  V.  Adams,  i.  3'.i4 ;  ii.  6G2. 
V.  Pletcher,  ii.  331. 
V.  Lynes,  ii.  344,  347. 
V.  Pung,  i.  171,  204,  257. 
Raybold  v.  Raybold,  ii.  505. 
Raymond  v.  Andrews,  i.  619. 

V.  Holborn,  ii.  178 ;  iii.  97. 

V.  Holden,  iii.  148,  257. 

V.  Ravraond,iii.448,452,456, 

475. 
V.  White,  i.  27. 
Raynham  v.  Wilmarth,  i.  276. 
Raynor  i:  Haggard,  i.  611. 
V.  Wilson,  iii.  247. 
Read  o.  Errington,  ii.  431. 
V.  JFogg,  iii.  97. 
V.  Gaillard,  ii.  55. 
V.  Leeds,  iii.  420. 
V.  Robinson,  iii.  284. 
V.  Trowbridge,  ii.  120. 
Reade  i\  Livingston,  iii.  335. 
Reading  v.  Weston,  ii.  58. 
Ready  o.  Kearsiey,  ii.  439,  504  ;  iii.  263. 
Ream  v.  Harnish,  i.  574. 
Reasoner  v.  Edmondson,  iii.  457. 
Reaume  v.  Chambers,  i.  164,  178,  174, 

188 ;  iii.  254. 
Rector  v.  Higgins,  i.  49;3. 

V.  Waugh,  i.  648,  651. 


Reckhow  v.  Schanck,  i.  515,  568,  582, 

621. 
Reddall  v.  Bryan,  iii.  213. 
Redden  v.  Barker,  i.  469. 
Redding  v.  Redding,  iii.  178. 

V.  Weston,  ii.  48. 
Redfern  v.  Middleton,  i.  119  ;  ii.  446. 
Redford  v.  Gibson,  ii.  91. 
Hedfield  v.  Buck,  iii.  335,  336. 
Redman  v.  Sanders,  ii.  106. 
Redwine  v.  Brown,  iii.  471. 
Reece  v.  Allen,  ii.  79. 
Reed  v.  Bigelow,  ii.  163. 

V.  Dickerman,  i.  317,  325. 

V.  Farr,  iii.  89. 

V.  Kemp,  iii.  314. 

V.  Kennedy,  i.  199. 

V.  Lansdale,  ii.  43. 

V.  Marble,  ii.  148. 

V.  McCourt,  iii.  89. 

V.  Morrison,  i.  220,  222,  225,  227, 
231,  254.  255. 

V.  Reed,  i.  586 ;  ii.  228, 236 ;  iii.  529. 

V.  Reynolds,  i.  533. 

V.  Shepley,  i.  559,  562 ;  ii.  185. 

I'.  Spicer,  ii.  300. 

V.  Stevenson,  235. 

V.  Ward,  i.  519. 

V.  Whitney,  i.  206. 
Reed's  Estate,  Matter  of,  i.  368. 
Reeder  v.  Barr,  iii.  200,  328. 
V.  Carey,  ii.  124. 
V.  Craig,  iii.  104. 
V.  Purdy,  i.  624,  626. 
Reese  v.  Smith,  iii.  479,  493. 

V.  Waters,  i.  182. 
Reeve  v.  Long,  ii.  587. 

V.  Scully,  ii.  247. 
Reformed  Dutch  Church  v.  Veeder,  ii. 

410. 
Regina  v.  Board  of  Works,  iii.  420. 
V.  Chadwick,  i.  214. 
V.  Chorley,  ii.  340,  343. 
Rehoboth  v.  Hunt,  i.  665. 
Reid  V.  Fitch,  ii.  480. 
V.  Kirk,  i.  8. 
V.  Shergold,  ii.  721. 
V.  Stevenson,  i.  235. 
Reiffy.  Reiff,  i.  133. 
Reigard  v.  Neil,  ii.  51. 
Reignolds  v.  p]dwards,  ii.  341. 
Reiily  v.  Mayor,  ii.  130,  219. 
Reimer  ;;.  Stuber,  ii.  324,  329 ;  iii.  165. 
Reinback  v.  Walter,  i.  355. 
Reinboth  v.  Zerbe  Run  Improvement, 

i.  687. 
Reinicker  v.  Smith,  i.  655. 
Reitenbaugh  v.  Ludwick,  ii.  51,  54. 
Remington  v.  Campbell,  ii.  472. 
Remsen  v.  Conklin,  i.  481. 
Ren  V.  Bulkeley,  ii.  640,  644,  649,  659. 
Renoud  c.  Daskam,  i.  500. 
Renshaw  v.  Bean,  ii.  337,  344. 
Renziehausen  r.  Keyser,  ii.  496. 
Repp  V.  Repp,  ii.  89. 


XCll 


TABLE   OF    CASES   CITED. 


Rerick  r.  Kern,  i.  635. 
Revalk  (-.  Kraemer,  i.  346,  353 ;  ii.  253. 
Revere  v.  Leonanl,  iii.  429. 
Rex  V.  Collett,  i.  590. 
V.  Dormy,  i.  627. 
Reynard  v.  ypenee,  i.  199. 
Reynolds  v.  Harris,  iii.  220. 
V.  Pitt,  ii.  22. 
V.  Fix  ley,  i.  353. 
V.  Reynolds,  i.  243,  259,  260. 
V.  Williams,  i.  467. 
Rhim  V.  Ellen,  iii.  376. 
Rhoades  v.  Parker,  ii.  66.  112. 
Rhode  V.  Louthain,  iii.  280. 
Rhodes  v.  Gardiner,  iii.  303. 

V.  McConuick,  i.  17,  371,  385, 

397. 
V.  Otis,  i.  634;  iii.  414,  415. 
V.  Rhodes,  iii.  236. 
Ricard  v.  Sauuderson,  ii.  210. 

V.  Williams,  ii.  319;  iii.  141, 144. 
Rice  V.  Barnard,  i.  668. 
V.  Bird,  ii.  62. 
V.  Boston  &  Wor.  R.  R.,  ii.  18  ;  iii. 

349. 
V.  Bunee,  iii.  78. 
V.  Cleghorn,  ii.  483. 
V.  Cribb,  ii.  107. 
V.  Dewey,  ii.  98,  115,  215. 
V.  Nelson,  iii.  228. 
V.  Osgood,  ii.  591. 
V.  Parkman,  iii.  214,  216,  217. 
V.  Peet,  i.  455. 
V.  Rice,  ii.  46,  59. 
V.  Tower,  ii.  166. 
V.  White,  iii.  20.  • 
V.  Worcester,  iii.  420. 
Rich  V.  Bolton,  i.  597,  602. 
V.  Doane,  ii.  48,  57. 
V.  Tubbs,  i.  346,  367,  382. 
V.  Zeilsdorf,  i.  14  ;  iii.  441. 
Richard  v.  Bent,  iii.  450,  459,  461. 
Richards  v.  Holmes,  ii.  74,  78,  81. 
V.  Learning,  ii.  85,  87,  91. 
V.  Miller,  iii.  541. 
V.  Richards,  ii.  519. 
V.  Rose,  ii.  313,  301,  362. 
Richardson  v.  Baker,  ii.  89. 

V.  Bates,  i.  448  ;  iii.  276. 

V.  Bigelow,  iii.  388. 

V.  liorden,  i.  25. 

V.  Boright,  i.  458 ;  iii.  2-50 

251. 
V.  Cambridge,  ii.    172 ;    iii 

386. 
V.  Copeland,  i.  5,  23,  26. 
V.  Dorr,  iii.  448. 
V.  Hildreth,  ii.  142. 
V.  Landgridge,  i.  589,   591 

602. 
V.  McNulty,  iii.  67. 
V.  Palmer,  iii.  384,  431,  441 
V.  Ridifelev.  ii.  90. 
V.  Rkoltield,  i.  217,  231. 
V.  Spencer,  ii.  484. 


Richardson  v.  Vermont  Cent.  R.  R.,  ii. 
360 ;  iii.  420. 
V.  W^allis,i.430;ii.222,223, 

227. 
1-.  Wheatland,  ii.  565,  607. 
V.  Woodbury,  ii.  44,  46,  52, 

481. 
V.  Wyatt,  i.  201. 
V.  Wyman,  i.  250,  251. 
V.  York,  i.  115,  130,   154; 
ii.  742. 
Richart  v.  Scott,  ii.  361. 
Richburg  v.  Bartley,  i.  482. 
Richman  v.  Lippincott,  i.  97. 
Richmond  v.  Aikin,  ii.  183,  187. 

V.  Tibbies,  iii.  115. 
Richmond  R.  R.  v.  Louisa  R.  R.,  ii. 

295,  297. 
Rickard  v.  Rickard,  i.  681. 
Rickart  v.  Madeira,  ii.  102, 122, 129, 140. 
Ricker  v.  Ham,  iii.  333. 
Rickets  v.  Dickens,  iii.  489. 
Ricketts  v.  Montgomery,  ii.  524. 
Ricks  V.  Reed,  iii.  322,  324. 
Riddell  v.  Jackson,  iii.  402. 
Riddle  v.  Bowman,  ii.  229. 

V.  Littlefield,  i.  437  ;  iu.  394. 
Rider  v.  Marsh,  i.  658. 
V.  Smith,  ii.  338. 
V.  Thompson,  iii.  384. 
Ridgeley  v.  Johnson,  ii.  521. 
Ridgley  v.  Stillweli,  i.  492,  525,  601,  602. 
Ridgway  v.  McAlpine,  i.  266. 

V.  Masting,  i.  2-50,  251. 
Ridley  v.  Ridley,  ii.  502. 
Riehl  V.  Bingenheimer,  ii.  439. 
Rifener  v.  Bowman,  iii.  247. 
Riesz's  Appeal,  iii.  236. 
Rigden  i-.  Vallier,  i.  643 ;  ii.  143. 
Rigg  V.  Lonsdale,  i.  15  ;  iii.  3. 
Right  V.  Bucknell,  iii.  113. 

V.  Darby,  i.  599,  601,  603,  610. 
V.  Smith,  ii.  412,  466. 
V.  Thomas,  ii.  649. 
Rigler  V.  Cloud,  i.  169. 
l!igney  v.  Lovejoy,  ii.  114, 121, 127, 212. 
Riker  v.  Darkee,  i.  681. 
liiley  V.  Garnett,  iii.  546,  547. 
V.  McCord,  ii.  257,  266. 
V.  Pehl,  i.  353. 
Rinehart  v.  Olwine,  i.  574. 
Ring  V.  Billings,  iii.  392. 
V.  Burt, 'i.  387,  413. 
V.  Gray,  iii.  323. 
Ripka  V.  Sergeant,  ii.  742. 
Ripley  v.  Bates,  ii.  477,  527 ;  iii.  162. 
V.  Paige,  i.  17. 
V.  Wightnian,  i.  537. 
V.  Yale,  i.  588 ;  iu.  162. 
Riseley  v.  Ryle,  i.  590. 
Rising  V.  Stannard,  i.  585, 586,  588,  698, 

604,  620,  655. 
Ritger  V.  Parker,  ii.  180,  194,  239. 
Ritter's  Appeal,  ii.  463. 
Rivard  v.  Walker,  iii.  290,  291. 


TABLE    OF    CASES    CITED. 


XClll 


Rivers  v.  Rivers,  ii.  502. 
Rivin  V.  Watson,  ii.  289. 
Rix  V.  ^Ic Henry,  i.  353. 
Roach  V.  WaiUiam,  ii.  638,  677. 
Roarty  v.  .Mitcliell,  ii.  G9,  76  ;  iii.  258. 
Roath  V.  DriscoU,  ii.  355,  357. 
Robb  V.  McBride,  i.  411,  424. 
Robb's  Appeal,  i.  518. 
Robbins  r.  Chicago,  i.  540,  541. 
V.  Eaton,  iii.  250. 
V.  Jones,  i.  540,  541 ;  iii.  73. 
V.  Robbins,  i.  208,  252. 
Roberts  v.  Barker,  i.  19. 
V.  Cow,  i.  344. 
V.  Croft,  ii.  82. 
V.  Dauphin  Bank,  i.  23. 
V.  Fleming,  ii.  73. 
V.  Jackson,  iii.  287,  293. 
V.  Karr,  iii.  421. 
V.  Littletield,  ii.  182. 
V.  Morgan,  i.  657  ;  iii.  143. 
V.  Richards,  ii.  215. 
•       V.  Roberts,  ii.  492,  493 ;  iii.  384. 
V.  Rose,  ii.  88. 
V.  Stanton,  ii.  677. 
V.  Ware,  ii.  480. 
V.  Welch,  ii.  183;  iii.  505. 
V.  Whiting,  i.  131,  181. 
V.  Wiggin,  i.  456. 
Robertson  v.  Campbell,  ii.  51,  66,  223. 
V.  Gaines,  ii.  69. 
V.  McNeil,  iii.  87,  121. 
V.  Norris,  ii.  68,  73. 
V.  Paul,  ii.  70. 
V.  Robertson,  i.  682. 
V.  Stevens,  i.  176. 
t   Wilson,  ii.  591;  iii.  96. 
Robeson  v.  Pittenger,  ii.  346. 
Robie  V.  Flanders,  i.  266,  303. 

V.  Smith,  i.  586. 
Robinett  v.  Compton,  iii.  316. 

V.  Preston,  i.  656. 
Robins  v.  Cox,  i.  520. 

V.  Kinsie,  i.  248. 
Robinson,  Goods  of,  iii.  527. 
Matter  of,  ii.  508. 
V.  Bates,  i.  250. 
V.  Buck,  iii.  839. 
V.  Chassey,  iii.  315. 
V.  Cropsey,  ii.  59. 
V.  Deering,  i.  526. 
V.  Fife,  ii.  181. 
V.  Gould,  iii.  291,  294. 
V.  Gray,  ii.  469. 
V.  Hardcastle,  ii.  667;   iii.  227. 
V.  Hathaway,  i.  558. 
V.  Johnson,  i.  666. 
V.  Justice,  iii.  77,  79,  82. 
V.  Lake,  iii.  134,  139,  191. 
V.  Leavitt,    i.    233 ;    ii.    212, 

217. 
V.  Litton,  ii.  136. 
17.  Loomis,  ii.  177. 
V.  Mauldin,  ii.  523. 
V.  McDonald,  i.  678. 


Robinson  r.  Miller,  i.  205,  224,  244,  258. 
V.  Perry,  i.  507. 
I'.  Presvvick,  i.  23. 
V.  Robinson,  ii.  35,  46,  603. 
V.  Russell,  ii.  104. 
V.  Ryan,  ii.  115,  230. 
V.  Sampson,  ii.  190. 
V.  Urquhart,  ii.  85,  189,  192. 
V.  Wallace,  i.  390. 
V.  White,  iii.  411. 
V.  Wiley,  i.  344,  390, 401, 402. 
V.  Williams,  ii.  152,  154. 
V.  Willoughby,  ii.  45. 
V.  White,  iii.  411. 
Robison  v.  Codman,  i.  165,  166, 195,  204. 
Rockfeller  v.  Donelly,  ii.  260. 
Rockhill  V.  Spraggs,  iii.  368,  378,  378. 
Rockingham  v.  Oxenden,  i.  481. 

V.  Penrice,  i.  127. 
Rockwell  V.  Adams,  iii.  88. 

V.  Baldwin,  iii.  409. 
V.  Bradley,  ii.  105. 
V.  Brown,  iii.  375. 
V.  Hobby,  ii.  85. 
V.  Jones,  ii.  180,  256. 
Rodgers  v.  Parker,  iii.  99,  485. 

V.  Rodgers,  i.  161. 
Rodman  v.  Hedden,  ii.  185. 
Rod  well  V.  Phillips,  iii.  343,  344. 
Roe  c.  Baldwere,  i.  108. 
V.  Gritfiths,  ii.  591. 
V.  Han-ison,  i.  480. 
V.  Jeffrey,  ii.  708. 
V.  Jones,  ii.  591. 
V.  Lees,  i.  602. 
I'.  Patteson,  iii.  528. 
V.  Popham,  ii.  432. 
V.  Prideaux,  ii.  669. 
V.  Read,  ii.  527. 
V.  Sales,  i.  474. 
V.  Tranmarr,  ii.  417 ;  iii.  366,  379, 

380. 
V.  Ward,  i.  603. 
V.  Wickett,  ii.  689. 
V.  Wiggs,  i.  609. 
V.  York,  i.  548,  552 ;  iii.  247. 
Roebuck  v.  Dupuy,  iii.  490. 
Roff  v.  Johnson,  i.  347,  384. 
Roffey  V.  Henderson,  i.  638. 
Rogan  V.  Walker,  ii.  7,  43,  61. 
Roger's  Appeal,  iii.  503. 
Rogers  v.  Brent,  iii.  309. 

V.  Carey,  iii.  283,  284,  285,  297. 
V.  Eagle  Fire  Ins.  Co.,  iii.  356, 

361,  .373. 
V.  Gillinger,  i.  15. 
V.  Goodwin,  iii.  202,  205. 
V.  Grazebrook,  ii.  112. 
V.  Grider,  i.  672,  675. 
V.  Hillhouse,  iii.  359,  368,  371. 
V.  Jones,  iii.  324. 
V.  Moore,  i.  120. 
V.  Parker,  iii.  429. 
V.  Renshaw,  i.  417. 
V.  Sawin,  ii.  347. 


XCIV 


TABLE   OP   CASES   CITED. 


Rogers  v.  So2;gs,  ii.  379. 

V.  Taylor,  ii.  3(30,  362. 
V.  Traders'  Ins.  Co.,  ii.  186. 
V.  Trustees,  &c.,  ii.  214. 
V.  AVoodbury,  i.  4. 
V.  Woody,  i.  "ioO. 
Roguet  V.  Roll,  ii.  24ti. 
Rolfe  V.  Harris,  ii.  22. 
Roll  V.  Osborn,  iii.  469. 
V.  Smaliey,  ii.  2-53. 
Rollins  i".  Forbes,  ii.  2-50. 
V.  Mooers,  i.  G27. 
V.  Riley,  ii.  17,  439,  445 ;  iii.  371. 
Rolt  V.  Hopkinson,  ii.  153,  154. 
Ronkendorf  v.  Taylor,  iii.  223. 
Roof  V.  Stafford,  i.  456,  457;  iii.  249. 
Rooney  v.  Gillespie,  i.  611,  618. 
Roosvelt  V.  Hopkins,  i.  473. 
Root  V.  Bancroft,  ii.  143,  169,  214. 
V.  Brotherson,  iii.  238. 
V.  Crock,  iii.  93. 
Roper  V.  McCook,  ii.  89,  92. 
Rose  V.  Davis,  i.  559. 
V.  Rose,  iii.  522. 

V.  Rose  Beneficent  Asso.,  iii.  518. 
V.  Watson,  ii.  !>4. 
Roseboom  v.  Van  Vechten,  i.  116. 
Rosewell  v.  Pryor,  ii.  305,  345. 
Ross  V.  Adams,  i.  106 ;  ii.  604 ;  iii.  353, 
448. 
V.  Cobb,  i.  683. 
V.  Drake,  ii.  551. 
V.  Dysart,  i.  488,  490. 
V.  Garrison,  i.  332,  600,  672. 
V.  Gill,  i.  459. 
V.  Norwell,  ii.  51. 
V.  Overton,  i.  535. 
V.  Ross,  ii.  720. 
V.  Swaringer,  i.  576. 
V.  Tremain,  ii.  11. 
V.  Whitson,  ii.  87,  90. 
V.  Worthington,  iii.  276. 
Rosseel  f.  Jarvis,  i.  570. 
Rossiter  v.  Cossitt,  i.  229,  232 ;  ii.  174. 
Rotch's  Wharf  i-  ,Judd,  iii.  283. 
Rothwell  V.  Dewees,  i.  685,  686. 
Roup  i\  Carradine,  i   398. 
Routledge  r.  Dorril,  ii.  HG8,  673. 
Rowan  v.  L^'tle,  i.  617. 

V.  Mercer,  ii.  253. 
V.  Sliarpe's   Rille    Mg.    Co.,  ii. 
1.54,  156 
Rowbotham  v.  Wilson,  ii.  362. 
Rowe  V.  Becketts,  iii.  325. 
V.  Bradley,  i.  217. 
V.  Heath,  iii.  477,  486,  488,  498. 
V.  Johnson,  i.  281,  284. 
V.  Hamilton,  i.  252. 
V.  Table  Mountain  Water    Co., 

ii.  250. 
V.  Williams,  i.  471. 
V.  Wood,  ii.  234. 
Rowell  V.  Klein,  i.  134. 
Rowletts  V.  Daniel,  ii.  444. 
Rowton  I'.  Rowton,  i.  205. 


Royal  Bank  v.  Grand  Junction,  iii.  273. 

Roy  all  V.  Lish,  iii.  150,  152. 

Royce  v.  Guggenheim,  i.  529,  530,  531, 

544 ;  ii.  346. 
Royer  v.  Ake,  i.  492. 

V.  Benlow,  iii.  153. 
Royston  v.  Royston,  i.  684. 
Rubey  v.  Barnett,  ii.  721,  725. 

V.  Huntsman,  iii.  224. 
Ruby  V.  Abyssinia  Soc,  ii.  222. 
Ruckman  v.  Outwafer,  i.  19. 
Ruffing  V.  Tilton,  iii.  334. 
Ruggles  V.  Barton,  ii.  115, 116, 117,  126. 
V.  Lawson,  iii.  288,  302,  305. 
V.  Lesure,  i.  632. 
V.  Williams,  ii.  51,  147. 
Runke  v.  Hanna,  i.  245. 
Runlet  u.  Otis,  iii.  76,  120. 
Runnels  v.  Webster,  iii.  460. 
Runyan  v.  Mersereau,  ii.  97,  122,   129, 
140. 
V.  Stewart,  i.  231,  234. 
Rush  V.  Lewis,  ii.  637,  654. 
Rushin  v.  Shields,  ii.  147. 
Russ  V.  Perry,  i.  255 ;  iii.  460. 

V.  Steele,  iii.  462,  474. 
Russel  V.  Russel,  ii.  82,  83. 
Russell  V.  Alard,  i.  558,  560. 

V.  Allen,  i.  518;  ii.  136. 

V.  Austin,  i.  230,  283. 

V.  Beebe,  iii.  200. 

V.  Blake,  ii.  228. 

V.  Carr,  ii.  45. 

V.  Coffin,  ii.  441 ;  iii.  862. 

V.  Dudley,  ii.  176. 

V.  Elder,  iii.  528. 

V.  Ely,  ii.  106,  108. 

V.  Erwin,  i.  559,  565;  iii.  155. 

V.  Fabyan,  i.  526,  558,  571,  588, 

616,619,  621. 
V.  Hoar,  iii.  14. 
V.  Hubbard,  i.  637. 
V.  Jackson,  ii.  333,  335. 
V.  Lewis,  ii.  520. 
V.  Malonev,  iii.  83,  86,  87,  88, 

142,  160,  161. 
V.  Marks,  iii.  162. 
V.  Pistor,  ii.  210. 
V.  Richards,  i.  4,  8. 
r.  Rumsey,  i.  102,  408;  iii.  212. 
V.  Smithies,  ii.  234. 
V.  Southard,  ii.  43,  46,  51,  60, 

63,  231. 
V.  Sweesey,  iii.  317. 
I".  Topping,  iii.  265. 
V.  Watt,  ii.  87. 
Rust  V.  Boston  Mill  Dam,  iii.  430. 

V.  Low,  ii.  367. 
Rutherford  r.  Greene,  i.  84. 
V.  Taylor,  iii.  73. 
V.  Tracy,  iii.  74. 
Ryall  V.  Rolle,  ii.  34,  39. 
Ryan  v.  Brown,  iii.  414. 

.     V.  Dox,  ii.  479  ;  iii.  235. 
V.  Dunlap,  ii.  129. 


TABLE   OF   CASES    CITED. 


xcv 


Ryder,  Matter  of,  ii.  551. 

V.  Innerarity,  iii.  220. 
Ryerson  v.  Eldred,  i.  507,  568. 

V.  Qiiackenbush,  i.  520,  521 
ii.  289. 
Ryerss  v.  Farinell,  i.  561,  503. 


Sackett  v.  Sackett,  i.  36,  140,  156. 

Sadler  v.  Pratt,  ii.  667. 

Sadler's  case,  iii.  48. 

Safford  v.  Safford,  i.  259. 

Saffvn  V.  Adams,  i.  443. 

Sahler  v.  Signer,  ii.  108. 

Sailor  v.  Hertzogg,  iii.  141,  158. 

Sainsbury  v.  Matthews,  i.  11. 

St.  Amour  v.  Rivard,  ii.  704. 

St.  Andrew's  Church  v.  Tompkins,  ii. 

161. 
St.  Andrew's  Church  Appeal,  ii.  309. 
St.  Clair  v.  Williams,  i.  293. 
St.  John  V.  Benedict,  ii.  432. 
V.  Kidd,  ii.  380. 
i;.  Palmer,  i.  532 ;  iii.  478. 
St.  Louis  V.  Morton,  i.  558. 
St.  Louis  University  v.  McCune,  iii.  160. 
St.  Paul  V.  Dudley^  ii.  195. 
Sale  V.  Pratt,  ii.  369. 
Salem  v.  Edgerly,  ii.  130, 178,  200,  204, 

206,  211. 
Salisbury  v.  Andrews,  ii.  338,  346. 

V.  G.  N.  Railway  Co.,  iii.  420. 
V.  Phillips,  ii.  49. 
Sallade  v.  James,  i.  138. 
Sallee  v.  Chandler,  ii.  484. 
Salman  v.  Clagett,  ii.  136,  145. 
Salmon  i\  Bennett,  iii.  3.35. 

V.  Smith,  i.  467,  528,  529. 
Salmons  v.  Davis,  iii.  148. 
Saltmarsh  v.  Beene,  ii.  524. 
V.  Smith,  i.  302. 
Saltonstal  v.  Saunders,  iii.  513. 
Sammes'  case,  ii.  410,  412. 

&  Payne's  case,  i.  264. 
Sample  v.  Coulson,  ii.  481,  486. 

V.  Rowe,  ii.  124. 
Sampson  v.  Burnside,  i.  630,  631,  682, 
633. 
V.  Easterby,  i.  501. 
V.  Grimes,  i.  519. 
V.  Plenry,  i.  622. 
V.  Hoddinott,  ii.  348,  349. 
V.  Patterson,  ii.  79. 
V.  Schaeffer,  i.  588. 
V.  Williamson,    i.    402,    416, 
417;  ii.  105. 
Samson  v.  Thornton,  iii.  310. 
Samuels  v.  Borrowscale,  iii.  141, 322, 323. 
Sanborn  v.  Clough,  iii.  397. 

V.  French,  iii.  152,  156. 
V.  Hoyt,  iii.  436. 
V.  Woodman,  ii.  21. 


Sandback  v.  Quigley,  i.  281. 
Sanders  v.  Partridge,  i.  494,  503,  504, 
508,  510,  513. 
V.  Reed,  ii.  134. 
V.  Merry  weather,  i.  474. 
Sanderson  v.  White,  iii.  516. 
Sandford  v.  Irbey,  ii.  718. 
V.  Jackson,  i.  323. 
V.  McLean,  i.  266. 
Sandiland,  in  re,  iii.  274. 
Sands  v.  Church,  ii.  176. 

V.  Codwise,  iii.  219,  333. 
V.  Hughes,  i.  508 ;  iii.  139. 
V.  PfeitFer,  i.  24 ;  ii.  157. 
Sanford  v.  Harvey,  i.  607,  608,  610,  611. 

V.  Travers,  iii.  483. 
San  Francisco  v.  Fields,  iii.  139,  140, 

145. 
Sangamon  R.  R.  Co.  v.  Morgan,  ii.  157. 
Sanger  v.  Bancroft,  ii.  115. 
Saralias  v.  Fenlon,  i.  357. 
Sargent  v.  Ballard,  ii.  301,  319,  320,  322, 
325,  326, 327, 329,  330, 332. 
V.  Fuller,  i.  2-34. 
V.  Howe,  ii.  77,  107. 
V.  McFarland,  ii.  216. 
V.  Parson,  i.  661,  662. 
V.  Pierce,  iii.  230. 
V.  Simpson,  iii.  191,  206. 
V.  Smith,  i.  502,  619. 
V.  Towne,  i.  85  ;  iii.  528. 
V.  Wilson,  i.  406. 
Sarles  v.  Sarles,  i.  130,  145,  146,  147. 
Sartill  V.  Robeson,  i.  166. 
Satterlee  v.  Matthewson,  i.  192. 
Saulet  V.  Shepherd,  iii.  56,  60. 
Saunders  v.  Dehew,  ii.  484. 
V.  Edwards,  ii.  487. 
V.  Evans,  ii.  671. 
V.  Frost,  ii.  174, 179,  224,  228, 

230,  235,  236,  256. 
V.  Harris,  ii.  508. 
V.  Newman,  ii.  327,  352,  373. 
V.  Stewart,  ii.  51. 
V.  Williams,  iii.  346. 
Saunders's  case,  i.  144. 
Saunderson  v.  Stearns,  ii.  611. 
V.  White,  iii.  521. 
Savage  v.  Dooley,  i.  226  ;  ii.  133. 

V.  Hall,  ii.  117,  194,  195,  255. 
V.  Murphy,  iii.  335. 
Savery  v.  Browning,  iii.  281. 
Saville  ?;.  Saville,  i.  123,  126. 
Sawyer  v.  Kendal,  iii.  131,  145. 
V.  Lyon,  ii.  208. 
V.  Peters,  iii.  307. 
V.  Skowhegan,  ii.  527. 
V.  Twiss,  i.  19. 
Sawyer's  Appeal,  ii.  475. 
Sawyers  v.  Cator,  i.  638. 
Saxby  v.  Manchester  R.  R.,  542. 
Say  and  Seal's  case,  iii.  266. 
Sayre  v.  Town.send,  ii.  476. 
Scales  V.  Cockrill,  iii.  137,  146. 
Scanlan  v.  Turner,  i.  250. 


XCVl 


TABLE   OF   CASES   CITED. 


Scanlan  o.  Wright,  iii.  323. 
Scatterwood  v.  Kdtrc,  ii.  573,  574,  683. 
Schafer  v.  Reilly.  ii.  247. 
Schaffner  r.  GnUzmacker,  iii.  260. 
Schall  V.  Williams  Valley  R.  R.,  iii.  164. 
Schedder  v.  Sawyer,  iii.  200. 
Scheerer  v.  Stanlej-,  i.  oO'J. 
Schenck  v.  Conover,  ii.  240  ;  iii.  219. 
V.  Elleiiwood,  ii.  G77. 
V.  Evoy,  i.  654. 
Schermerhorne  v.  Schermerhorne,    iii. 
529. 
V.  Buel,  i.  467. 
Schieflin  v.  Carpenter,  i.  551. 
Schilling  v.  Holmes,  i.  490,  528,  609. 
Schley  v.  Lyon,  ii.  467. 
Schmidt  r.  Hoyt,  ii.  114,  149. 
Schmitz  V.  Schmitz,  iii.  407. 
Schnorr's  Appeal,  iii.  515. 
Schofield  V.  Homestead  Co.,  iii.  450. 
School  Directors  v.  Dunkleberger,  ii. 

527. 
School  District  v.  Benson,   iii.    64,    66, 
164. 
V.  Lynch,  iii.  185. 
Schools,  The,  v.  Risley,  iii.  57. 
Schouton  V.  Kilmer,  i.  401. 
Schoway  v.  Brown,  i.  412. 
Schrack  v.  Zubler,  iii.  138,  145. 
Schrader  v.  Decker,  iii.  252. 
Schryver  i'.  Teller,  ii.  203. 
Schuisler  v.  Ames,  i.  551. 
Schumaker  v.  Schmidt,  iii.  504. 
Schurmeier  i-.  St.  F.  &  P.  R.  R.,  iii.  412. 
Schutt  V.  Large,  iii.  247,  324. 
Schuyler  v.  Leggett,  i.  599,  615. 

V.  Smith,  i.  604,  620. 
Schuylkill  Co.  v.  Thoburn,  ii.  162. 

K.  R.  V.  Schmoele,  i.  469. 
Scituate  v.  Hanover,  ii.  503. 
Scofield  V.  Lockwood,  iii.  398. 
Scott  V.  Buchanan,  i.  456,  457,  458. 

V.  Douglass,  iii.  100. 

V.  Fields,  ii.  49. 

V.  Freeland,  ii.  73. 

V.  Guernsey,  i.  662,  664  ;  ii.  707. 

V.  Hancock,  i.  292. 

V.  Henry,  ii.  50,  54,  60. 

V.  Lunt,  i.  496,  518 ;  ii.  274,  278, 
282,  283. 

V.  McFarland,  ii.  44,  54,  182. 

V.  Purcell,  iii.  256. 

V.  Scarborough,  ii.  499. 

V.  Scott,  iii   447. 

V.  State,  i.  655. 

V.  Wharton,  ii.  136. 

V.  Whipple,  iii.  273. 
Scovell  V.  Boxall,  iii.  346. 
Scoville  V.  Hilliard,  i.  682. 
Scratton  v.  Brown,  iii.  59. 
Screven  v.  Gregorie,  ii.  306. 
Scribner  v.  Holmes,  iii.  462. 
Scrimshire  v.  Scrimshire,  i.  215. 
Scrugham  v.  Wood,  iii.  295. 
Scull  V.  Reeves,  ii.  503,  507,  508. 


Seagram  r.  Knight,  i.  154. 
Seal  V.  Seal,  'i.  723. 
Seaman  c.  Fleming,  ii.  151. 
Searcy  v.  Reardon,  ii.  485. 
Sears  v.  Hanks,  i.  416. 

V.  Russell,  i.  83  ;  ii.  696,  703,  704, 

709,  710,  720. 
V.  Sellew,  i.  059. 
V.  Smith,  ii.  93. 
Seaton  i\  Jamison,  i.  282. 

V.  Son,  354,  368. 
Seaver  v.  Durant,  ii.  222. 

V.  Phelps,  i.  455. 
Seavey  v.  Jones,  iii.  388. 
Seaward  ;;.  Willock,  ii.  559. 
Seawell  v.  Buncli,  iii.  165. 
Second    Cong.    Society  v.  Waring,  ii. 

619. 
Second  Reformed  Church  v.  Disbrow, 

ii.  721. 
Secor  7'.  Pestana,  i.  599,  601. 
Sedgewick  v.  Laflin,  i.  82 ;   ii.  42,  68, 
663,  665. 
V.  Minot,  iii.  541. 
V.  Place,  iii.  336. 
Seers  v.  Hinds,  i.  773. 
Seibert  v.  Levan,  ii.  373. 
Seibert's  Appeal,  i.  378. 
Seigle  V.  Louderbaugh,  iii.  154. 
Selby  V.  Alston,  ii.  493,  514,  516. 

V.  Stanley,  ii.  90. 
Selden  v.  Del.  &  Hud.  Canal  Co.,  i.  629, 
631,  632,  637. 
V.  Vermilyea,  ii.  497. 
Selleck  i'.  Starr,  iii.  331. 
Sellers  v.  Stalcup,  ii.  51,  60. 
Sellick  V.  Adams,  iii.  121. 
Sellman  v.  Bowen,  i.  283,  293. 
Semple  v.  Burd,  ii.  145. 
Senhouse  v.  Christian,  ii.  327,  335. 
Sennett  v.  Buclier,  i.  443. 
Sergeant  v.  Steinberger,  i.  645,  675. 
Seventeenth  Street,  iii.  422. 
Sewell  V.  Cargill,  ii.  410. 

V.  Lee,  i.  242 ;  iii.  47. 
Sexton  V.  Wheaton,  iii.  835. 
Seymour's  case,  i.  88,  257 ;  ii.  643. 
Seymour  v.  Canandaigua  &  N.   R.   R., 
ii.  157. 
V.  Carter,  i.  639. 
V.  Cour^enay,  iii.  442,  443. 
V.  Darrow,  ii.  152,  187. 
V.  Freer,  i.  31 ;  ii.  476,  492. 
V.  Lewis,  ii.  301,  306,  316,317. 
Shackelford  v.  Hall,  ii.  9. 

V.  Bailey,  iii.  155,  386. 
Shadt  V.  Hepf)e,  i.  367. 
Shaeffer  v.  Chambers,  ii.  134,  224,  234, 
236. 
V.  Ward,  i.  208. 
Shall  V.  Biscoe,  ii.  92. 
Shankland's  Appeal,  ii.  526. 
Shanks  v.  Lancaster,  iii.  277. 
V.  Lucas,  iii.  20,  194. 
Shannon  v.  Bradstreet,  ii.  100. 


TABLE   OP   CASES   CITED. 


XCVU 


Shannon  v.  Burr,  i.  467,  517. 
V.  Marselis,  ii.  206. 
Shapleigh  v.  Tilsbury,  ii.  410,  418,  442, 

591,  616. 
Shapley  v.  Rangeley,  iii.  76. 
Sliarkey  v.  Sharkey,  ii.  45. 
Sharon  Iron  Co.  v.  City  of  Erie,  ii.  20. 
Sharp  i;.  Brandow,  iii.  151,  152,  154. 
V.  Petit,  i.  283,  284. 
V.  Proctor,  ii.  47. 
Sharpe  v.  Kelley,  i.  560,  587. 
Sharpley  v.  Jones,  i.  304. 
Sharpsteen  v.  Tillou,  ii.  651,  652. 
Shattuck  V.  Gragg,  i.  273. 

V.  Lovejoy,  i.  474. 
Shaumberg  v.  Wright,  iii.  248. 
Shaw  V.  Farnsworth,  i.  452. 
V.  Galbraith,  iii.  448. 
t;.  Hayward,  iii.  294,  300. 
V.  Hersey,  i.  672. 
V.  Hoadley,  ii.  180,  254. 
V.  Hoflfman,  i.  581. 
I'.  Kay,  i.  440. 
V.  Loud,  ii.  260 ;  iii.  263. 
V.  Neale,  ii.  153,  154. 
V.  Poor,  iii.  319. 
V.  Read,  ii.  474. 
V.  Russ,  i.  246. 
V.  Weigh,  ii.  495,  603. 
Sheafe  v.  Gerry,  ii.  169,  171. 
V.  O'Neil,  i.  276,  302. 
Shearer  v.  Ranger,  iii.  461. 
V.  Sliearer,  i.  670. 
V.  Winston,  i.  679. 
Sheckell  v.  Hopkins,  ii.  63. 
Shee  V.  Manhattan  Co.,  ii.  197. 
Sheets  v.  Grubbs,  ii.  604  ;  iii.  523,  540. 
V.  Rambo,  i.  100. 
V.  Selden,  i.  469,  485,  487,  491, 
505,  534,  537,  538; 
iii.   387. 
SheflBeld  v.  Lovering,  iii.  16. 

V.  Orrery,  ii.  583,  711. 
Shehan  v.  Barnett,  iii.  218. 
Slieldon  v.  Bird,  ii.  174,  255. 
V.  Peterson,  ii.  288. 
V.  Sheldon,  ii.  525. 
V.  Wright,  iii.  210. 
Shelley  v.  Wright,  iii.  101. 
Shelley's  case,  i.  84;  ii.  398,  429,  431, 

567,  597. 
Shelor  v.  Mason,  i.  344,  402. 
Shelton  v.  Alcox,  iii.  120. 
V.  Armor,  iii.  271. 
V.  Carrol,  i.  272. 
V.  Codnian,  i.  499,  509. 
V.  Doe,  i.  558. 
V.  Homer,  ii.  523. 
Shelton's  case,  iii.  285. 
Shepard  v.  Merrill,  i.  534. 

V.  Philbrick,  i.  138. 
V.  Richards,  i.  661. 
V.  Ryers,  iii.  120. 
V.  Shepard,  ii.  260. 
V.  Spaulding,  1.  548. 


Sheperd  v.  Adams,  ii.  206. 
Shephard  v.  Little,  ii.  394. 

V.  Shephard,  i.  336;  ii.  151, 
707. 
Shepherd  v.  Briggs,  i.  546. 

V.  Cassiday,  i.  427. 
V.  Howard,  i.  247 ;  iii.  254. 
V.  McEvers,  ii.  503,  507. 
V.  Thompson,  iii.  426. 
V.  White,  i.  365 ;  ii.  474,  479, 
481,  523. 
Sheppard  v.  Coram'rs  Ross  Co.,  iii.  220. 

V.  Warden,  i.  250. 
Shepperd  v.  Murdock,  ii.  183. 
Sheratz  v.  Nicodemus,  ii.  92. 
Sherburne  v.  Jones,  i.  134,  584. 
Sheridan  v.  Welch,  ii.  76. 
Sheriff  y.  Wrotliom,  ii.  714. 
Sherman  v.  Abbot,  ii.  196. 

V.  Champlain    Trans.    Co.,  i. 

564,  571. 
V.  Dodge,  ii.  448. 
V.  McKeon,  iii.  423. 
V.  Sherman,  ii.  129. 
V.  Wilder,  i.  546. 
V.  Willett,  iii.  392. 
Sherred  v.  Cisco,  ii.  363. 
Sherwood  v.  Barlow,  iii.  359. 
V.  Burr,  ii.  319,  320. 
V.  Dunbar,  ii.  191. 
V.  Seaman,  i.  491. 
V.  Sutton,  ii.  493. 
Shibla  V.  Ely,  ii.  492. 
Shield  V.  Batts,  i.  302. 
Shields  v.  Lozear,  i.  567,  568,  569 ;  ii. 

128,  139,  172,  173. 
Shiels  V.  Stark,  i.  642,  647,  661. 
Shin  V.  Fredericks,  ii.  194. 
Shine  v.  Wilcox,  i.  141. 
Shipley  v.  Fifty  Associates,  i.  539. 
Shipman  v.  Horton,  i.  457. 
Shirkey  v.  Hanna,  ii.  255,  256. 
Shirley  v.  Ayers,  iii.  288,  302,  303,  304, 
305. 
V.  Congress  Sugar  Refinery,  ii. 

89. 
V.  Fearne,  iii.  275. 
in  Shirley,  ii.  93. 
Shirras  v.  Caig,  ii.  151 ;  iii.  429. 
Shirtz  V.  Shirtz,  i.  284. 
Shitz  V.  Dieffenbach,  ii.  84. 
Shively  v.  Jones,  ii.  253. 
Shoemaker  v.  Smith,  ii.  477. 

V.  Walker,  i.  195,  205. 
Shoenberger  v.  Hackman,  iii.  302. 
V.  Watts,  ii.  43. 
V.  Zook,  iii.  286. 
Shore  v.  Dow,  i.  653. 

V.  Wilson,  iii.  404. 
Shores  v.  Carley,  i.  175. 

V.  Scott  River  Co.,  ii.  239. 
Short  V.  Taylor,  i.  640. 
Shortall  v.  Hinckley,  iii.  329,  832, 
Shortz  V.  Unangst,  ii.  514. 
Shotwell  V.  Harrison,  iii.  316,  323. 


XCVIU 


TABLE   OP    CASES   CITED. 


Shotwell  V.  Mott,  iii.  517,  518. 
Sliove  V.  I'iiickc,  iii.  STiJ. 
Shrewsbury  v.  Smith,  ii.  511;  iii.  205. 
Shrewsbury's  (Countess  of)  case,  i.  IGO ; 

iii.  240. 
Shricker  v.  Field,  ii.  239. 
Shrieve  v.  Stokes,  ii.  860,  361. 
Shriver  v.  Lynn,  ii.  567  ;  iii.  219. 
Slirunk  v.  Schuylkill  Co.,  iii.  413. 
Shutelt  V.  Shul'elt,  ii.  176. 
Shulenberg  v.  liarriman,  ii.  14. 
Shult  V.  Barker,  i.  144. 
Shults  V.  Moore,  iii.  276,  319. 
Shuraway  v.  Collins,  i.  474,  528,  534. 

V.  Simons,  iii.  53. 
Shurtz  V.  Thomas,  i.  254. 
Shyrock  v.  Waggoner,  ii.  485. 
Sibley  v.  Ellis,  ii.  324. 

V.  Holden,  iii.  421. 
V.  Rider,  ii.  128, 517. 
Sicard  v.  Davis,  iii.  152,  270,  324. 
SicelofF  v.  Redman,  ii.  606. 
Siemon  v.  Schurck,  ii.  532. 
Sigourney  ;;.  Eaton,  i.  653 ;  ii.  149. 
Silloway  v.  Brown,  i.  849,  373,  387,  399, 

412,  424,  430,  659,  6G0;  ii.  243. 
Silsby  V.  Allen,  i.  590. 
Silver  Lake  Bank  v.  North,  ii.  230. 
Silvester  v.  Wilson,  ii.  GOO. 
Simers  v.  Salters,  i.  560,  561. 
Simkin  v.  Ashurst,  i.  617. 
Simmons  v.  Johnson,  i.  404  ;  iii.  429. 

V.  Norton,  i.  129,  130. 
Simms  v.  Harvey,  iii.  241. 
Simonds  v.  Powers,  i.  392. 
Simonton  v.  Gray,  i.  206,  227,  228,  233, 

300. 
Simonton's  Estate,  iii.  300. 
Simpson  v.  Ammons,  i.  648 ;  ii.  102. 

V.  Bowden,  ii.  742. 

V.  Mundee,  ii.  87,  93;  iii.  271, 
314,  322. 
Simpson's  Appeal,  i.  254. 
Sims  u.  Conger,  ii.  572. 
I'.  Irvine,  iii.  196. 
V.  Meaciiam,  iii.  53. 
V.  Smith,  ii.  380. 
Simson  v.  Eckstein,  ii.  76. 
Sinclair  v.  Armitage,  ii.  41. 

V.  Jackson,  ii.  669,  676 ;  iii.  70, 
106,  110. 
Singleton  v.  Singleton,  i.  293. 
Sip  V.  Lawback,  i.  254. 
Sipes  V.  Mann,  i.  391. 
Sisk  V.  Smith,  i.  256. 
Sisson  V.  Seabury,  ii.  565. 
Siter  V.  McClanachan,  ii.  150. 
Size  V.  Size.  i.  385,  424. 
Skaggs  V.  Nelson,  ii.  86,  92. 
Skeel  V.  Spraker,  ii.  203. 
Skinner  v.  Beatty,  1.  406. 

V.  Buck,  ii.  252. 

V.  Dayton,  ii.  21. 

V.  Miller,  ii.  43,  50,  60. 

V.  Wilder,  i.  12. 


Skull  V.  Glenister,  ii.  304. 
Slater  v.  Dangcrfield,  ii.  G03. 

V.  Jeplierson,  iii.  149. 

o.  Nason,  i.  74. 

V.  Rawson,  i.  58,  59,  74 ;  iii.  126, 
128,     147,    449,    452,    457, 
469. 
Slaughter  v.  Detiney,  i.  410. 

V.  Foust,  ii.  248,  2-55. 
Slaymaker  v.  St.  John,  ii.  480. 
Slayton  v.  Mclntire,  ii.  125. 
Slee  V.  Manhattan  Co.,  ii.  41,  51,  77. 
Sleigh  V.  Metham,  ii.  417. 
SHce  V.  Derrick,  685 ;  iii.  148,  152. 
Sheer  v.  Bank  of  Pittsburg,  ii.  182. 
Slingsby  v.  Barnard,  ii.  361. 
Sloane  v.  Nance,  i.  884. 

V.  Whitman,  i.  279. 
Slocum  V.  Seymour,  iii.  345. 
Slowey  V.  McMurray,  ii.  51,  59,  60. 
SmaU  V.  Clifford,  i.  646,  657. 

V.  Jenkins,  i.  654. 

V.  Proctor,  i.  62,  216 ;  iii.  92,  97. 
Smart  v.  Morton,  ii.  362. 

V.  Whaley,  i.  212. 
Smartle  v.  Williams,  ii.  168. 
Smiles  v.  Hastings,  ii.  333,  339,  371. 
Smiley  v.  Van  Winkle,  i.  512,  552. 

V.  Wright,  i.  205,  224,  253,  294. 
Smith,  Goods  of,  iii.  536. 

V.  Adams,  ii.  356. 

V.  Addleman,  i.  289. 

V.  Allen,  i.  667 ;  iii.  310,  334,  337, 
368. 

V.  Anders,  ii.  262. 

V.  Ankrim,  i.  537. 

V.  Atkins,  i.  471. 

V.  Baldwin,  i.  325. 

V.  Barnes,  ii.  341  ;  iii.  63. 

V.  Bell,  ii.  720,  724. 

V.  Bennett,  ii.  322. 

V.  Benson,  iii.  262. 

V.  Brackett,  i.  389,  401,  415. 

V.  Brannan,  ii.  14. 

V.  Brinker,  i.  503. 

V.  Burtis,  iii.  127,  128,  129,  130, 
148,  158. 

V.  Chapin,  iii.  146. 

V.  Chapman,  ii.  2.53. 

V.  Clyftbrd,  ii.  589. 

V.  Columbia  Ins.  Co.,  ii.  231. 

V.  Conipton,  iii.  487,  488. 

V.  Deschaurnes,  i.  362. 

V.  Dickenson,  iii.  280. 

V.  Doe,  ii.  380. 

V.  Dyer,  ii.  141,  257. 

V.  Estell,  i.  388. 

V.  Eustis,  i.  226,  231,  281,  294. 

V.  FoUansbee,  i.  143,  157. 

V.  Forrest,  iii.  428. 

V.  Gardner,  i.  252 ;  ii.  103,  255. 

V.  Goodwin,  ii.  134. 

V.  Goulding,  i.  633. 

V.  Hamilton,  iii.  88,  424. 

V.  Handy,  i.  248. 


TABLE   OF    CASES    CITED. 


XCIX 


Smith  V.  Hileman,  iii.  227,  230. 

V.  Hosnier,  iii.  U'J,  151,  158, 160. 

V.  Howilon,  iii.  422. 

V.  Hunt,  iii.  321. 

V.  Hunter,  ii.  699. 

V.  Inijalls,  i.  237. 

V.  Ingram,  iii.  154. 

V.  Jackson,  i.  201,  207,  296,  669. 

V.  Jevvett,  i.  129,  130,  131. 

V.  Jolnis,  ii.  101,  134. 

V.  Johnston,  i.  10 ;  iii.  392. 

V.  Kelley,  ii.  101,  175;  iii.  16. 

V.  Kenrick,  ii.  344,  353. 

V.  Kniglit,  i.  655. 

V.  Kniskern,  i.  324. 

V.  Ladd,  iii.  436. 

V.  Lawrence,  iii.  351. 

V.  Lee,  ii.  342. 

V.  Low,  i.  458. 

V.  Littlefield,  i.  617,  628. 

V.  Malings,  i.  527,  533. 

V.  Manning,  ii.  174,  180. 

V.  Mapleback,  i.  516. 

V.  Marc,  i.  409. 

V.  Marrable,  i.  544,  545. 

V.  Martin,  iii.  396,  397. 

V.  McGowen,  iii.  247. 

V.  Montes,  iii.  111. 

V.  Metcalf,  ii.  496. 

V.  Miller,  i.  408,  409 ;  ii.  325. 

V.  Mitcliel,  iii.  148. 

V.  Mood  us  Water  Co.,  iii.  90. 

r.  Moore,  ii.  98,   101,   118,   121, 

127,  134,  169. 
V.  Murphy,  iii.  408. 
V.  Niver,  i.  549. 
V.  Oraans,  i.  404. 
V.  Packard,  ii.  242. 
V.  Painter,  ii.  515. 
V.  Parks,  ii.  50,  111. 
V.  Paysenger,  i.  254. 
V.  People's  Bank,  ii.  46,  119,  140. 
V.  Porter,  iii.  286. 
V.  Powers,  iii.  428. 
V.  Poyas,  i.  141. 
V.  Prevvitt,  iii.  425. 
V.  Price,  i.  10  ;  iii.  392. 
V.  Prince,  ii.  187. 
V.  Provin,  i.  387,  399,  413  ;  ii.  68, 

69,  174,  245. 
V.  Putnam,  i.  472. 
V.  Raleigh,  i.  529,  533. 
V.  Risley,  ii.  425. 
V.  Sackett,  ii.  478. 
V.  Sliackleford,  iii.  425. 
V.  Shaw,  i.  600. 
V.  Shepard,  ii.  136. 
V.  Shuler,  ii.  99,  101. 
V.  Simons,  i.  462. 
V.  Slocomb,  iii.  420,  422. 
V.  Smitli,  i.  201,   213,  287,   319, 

325,  366,  605;    ii.    75,    111, 

118,  190;  iii.  157. 
V.  So.  Koyalton  Bank,  iii.  303. 
V.  Sprague,  iii.  472. 


Smith  V.  Stanley,  i.  219,  230,  284 ;   ii. 
187. 
V.  Starr,  ii.  721. 
V.  Steele,  iii.  210. 
V.  Stewart,  i.  595. 
V.  Strahan,  ii.  473,  474,  475,  476. 
V.  Strong,  iii.  93,  400,  456,  493. 
V.  Surman,  i.  11 ;  iii.  343,  344,  346. 
V.  Tarlton,  i.  667. 
V.  Taylor,  ii.  110,  137. 
V.  Thackerah,  ii.  360. 
V.  Vincent,  ii.  128. 
V.  Wells,  i.  349,  388. 
V.  Williams,  iii.  327. 
V.  Wilson,  ii.  47. 
V.  Wriglit,  ii.  483. 
V.  Yule,  iii.  318. 
Smither  c.  Willock,  ii.  551. 
Smithwick  v.  Elhson,  i.  19. 

V.  Jordan,  ii.  468. 
Smyth  V.  Carlisle,  iii.  334. 

V.  Tankersley,  i.  578. 
Snape  v.  Turton,  ii.  645. 
Snedeker  v.  Warring,  i.  17  ;  ii.  157. 
Sneed  v.  Jenkins,  i.  565. 

V.  Osborn,  iii.  88,  89. 
Sneider  v.  Heidelburger,  i.  344,  352. 
Snively  v.  Luce,  i.  685. 
Snoddy  v.  Kreutoh,  iii.  129. 
Snodgras.s  v.  Ricketts,  iii.  70,  82,  85. 
Snow  V.  Chapman,  iii.  402. 
V.  Snow%  iii.  13. 
V.  Stevens,  i.  229,  231. 
Snowden  v.  Wilas,  i.  631,  632,  636;  ii. 

303. 
Snowman  v.  Harford,  ii.  252. 
Snyder  v.  Lane,  iii.  463. 
V.  Riley,  i.  518. 
V.  Snyder,  i.  298;  iii.  230. 
Society,  &c.  v.  Hartland,  ii.  448. 

V.  Pawlet,  iii.  139. 
Sohier  v.  Coffin,  iii.  329. 
V.  Eldridge,  i.  123. 
V.  Mass.  Gen.  Hospital,  iii.  213, 

214,  216,  217. 
V.  Trinity  Church,  i.  81 ;  iii.  218, 
Soller  r.  Croft,  ii.  524. 
Solms  V.  McCullock,  ii.  145. 
Solomon  v.  Vintner's  Co.,  ii.  362. 

V.  Wilson,  ii.  41. 
Soniers  1-.  Pumphrey,  i.  455;  iii.  284, 
285,  292. 
V.  Schmidt,  iii.  472. 
Somersworth  Savings  Bank  v.  Roberts, 

ii.  43. 
Somes  V.  Brewer,  iii.  334,  339. 

V.  Skinner,  i.  454,  666  ;  ii.  256. 
527;     iii.  96,  107,   109,    118, 
466. 
Soper  V.  Guernsey,  ii.  66. 
Souder  v.  Morrow,  ii.  146  ;  iii.  821. 
Soule  V.  Allen,  ii.  152,  254. 
South  V.  Allaire,  iii.  529. 
South  Cong.  Meeting  House  v.  Hilton, 
i.  449. 


TABLE   OP   CASES   CITED. 


South  Metropolitan  Cemetery  Co.  v. 

Ellen,  ii.  304. 
South  Sea  Co.  v.  Wymansdell,  ii.  493. 
Southard  v.  Cent.  R.  R.  Co.,  ii.  15;  iii. 

523. 
Southcote  1-.  Stowcll,  ii.  617,  647. 
Soutiier  V.  Wil.son,  ii.  241. 
Southcrin  v.  Mendum,  i.    523;     ii.   98, 

10(J,  118,  121,  127. 
Southern  Life  Ins.  Co.  v.  Cole,  iii.  294, 

304. 
Soutter  V.  Porter,  i.  655. 
Souverbye  v.  Arden,  iii.  281,  285,  295, 

297,  303,  338. 
Sover's  case,  i.  627. 
Spader  v.  Lawler,  ii.  53, 14-5,  153,  156. 
Spalding  v.  Shalmer,  ii.  528. 

V.  Woodward,  i.  680. 
Spangler  v.  Stanler,  i.  194,  224,  466. 
Sparkawk  v.  Baurg,    ii.    135,    170;    iii. 
331,408. 
V.  Sparhawk,  iii.  506. 
V.  Twichell,  ii.  367. 
V.  Wills,  ii.  177,  224,  228. 
Sparks  v.  State  Bank,  i.  24 ;  ii.  145. 
Sparrow  v.  Kingman,  i.  239  ;  iii.  92, 97. 
Spaulding  i'.  Cliicago  II.  R.,  i.  151. 

V.  Warren,  i.  59  ;  iii.  152. 
Spear  v.  Fuller,  i.  479. 
Speer  v.  Evans,  ii.  147  ;  iii.  316,  323. 

V.  Speer,  iii.  306,  307. 
Spence  v.  Aldrich,  ii.  206. 
Spencer  v.  Carr,  iii.  291. 

V.  Geissiuan,  i.  353. 
V.  Lewis,  i.  136. 
V.  Marlborough,  ii.  673. 
V.  Spencer,  i.  177. 
V.  Waterman,  ii.  212. 
V.  Weston,  i.  206,  302. 
Spencer's  case,  i.  495,  499,  501. 
Sperry  v.  Sperry,  i.  481,  548;  ii.  13, 16. 
Spickles  V.  Sax,  i.  492. 
Spigener  v.  Cooner,  iii.  57. 
Spiller  V.  Scribner,  iii.  74,  399,  425, 429. 
Spitts  V.  Wells,  i.  678. 
Spiva  V.  Jeter,  i.  321. 
Sprague  v.  Baker,  iii.  460,  465,  474. 
V.  Qiiinn,  i.  587. 
V.  Snow,  iii.  434,  442. 
V.  Woods,  ii.  430,  446. 
Sprigg  V.  Bank  of  Mt.  Pleasant,  ii.  51 ; 

iii.  378. 
Spring  V.  Fiske,  ii.  177. 
Springer  v.  Berry,  ii.  475,  518. 

V.  Phillips,  ii.  282. 
Springfield  v.  Miller,  iii.  20-5. 
Sproule  V.  Foye,  iii.  422. 
Spurgeon  v.  Collier,  ii.  63. 
Spyve  V.  Topham,  iii.  438. 
Squire  v.  Campbell,  ii.  313,  347. 
I'.  Compton,  ii.  213,  214. 
Squires  v.  Huff,  i.  602,  610. 
Staats  V.  Ten  Eyck,  iii.  492. 
Stackpole  v.  Arnold,  ii.  50. 

V.  Bobbins,  iu.  378. 


Stafford  I'.  Lick,  iii.  317. 
Stafford  i:  Roof,  i.  456,  457. 

V.  Van  Itensselaer,  ii.  93. 
Stall  v.  Cincinnati,  ii.  528. 
Stainbaugh  v.  Gates,  i.  11. 
Stamford  Bank  v.  Benedict,  ii.  218. 
Stamper  v.  Griffin,  iii.  162. 
V.  Johnson,  ii.  51. 
Standell  i'.  Roberts,  ii.  145. 
Standen  «.  Chrismas,  i.  508. 
Staniford  v.  Fullerton,  i.  655. 
Stanley  v.  Colt,  ii.  3,  495. 

u.  Greene,   iii.   271,   324,    384, 

402,  403. 
V.  Hays,  iii.  474. 
V.  Kempton,  ii.  70,  116. 
V.  Stocks,  ii.  206. 
Stanly  v.  Greenwood,  i.  363. 
Stansburg  v.  Taggart,  iii.  162. 
Stansell  r.  Roberts,  ii.  92. 
Stansfield  v.  Mayor,  &c.,  i.  437. 
V.  Habergham,  ii.  627. 
V.  Portsmouth,  i.  .30. 
Stanwood  i\  Dunning,  i.  217,  219. 
Stark  V.  Coflan,  i.  32 ;  iii.  422. 
V.  llunton,  i.  323. 
V.  McGowen,  ii.  291. 
V.  Mercer,  ii.  249. 
Starke  v.  Starke,  ii.  492,  493. 
Starr  v.  Ellis,  ii.  189,  193,  517. 
V.  Jackson,  i.  588,  589. 
V.  Pease,  i.  192. 
State  V.  Arledge,  iii.  191. 
V.  Bonham,  i.  8. 
V.  Brown,  i.  89. 
I'.  Chrisman,  iii.  299. 
I'.  Company,  ii.  366. 
V.  Crutchfield,  iii.  190. 
V.  Fry,  i.  192. 
V.  Gilnianton,  iii.  410,  416. 
V.  Jennings,  iii.  278. 
V.  Laval,  ii.  103,  165. 
V.  Lawson,  ii.  163. 
V.  Melogue,  i.  355,  370,  397,  423. 
V.  Moore,  ii.  .380. 
V.  Northern  C.  R.  R.  Co.,  ii.  157. 
V.  Page,  i.  438. 
V.  Peck,  iii.  272,  302. 
;;.  Pottmeyer,  i.  4  ;  iii.  342. 
V.  Throop,  ii.  207. 
V.  Titus,  ii.  206. 
V.  Trask,  ii.  613 ;  iii.  73. 
V.  Whitbank,  iii.  -524. 
State  Bank  v.  Evans,  iii.  300,  302,  303. 

V.  Tweedy,  ii.  123. 
Statham  u.  Bell,  ii.  689.    _ 
Staunton  v.  Thompson,  ii.  194. 
Steacy  v.  Rice,  ii.  468,  497. 
Stearns  v   Godfrey,  i.  571 ;  ii.  25,  26. 
V.  Harris,  ii.  15,  17. 
V.  Hendersass,  iii.  111. 
V.  Sampson,  i.  027. 
V.  Swift,  i.  246,  247  ;  iii.  257. 
Stebbins  v.  Hall,  iii.  489. 

V.  Merritt,  iii.  273. 


TABLE   OF   CASES    CITED. 


CI 


Stebbins  v.  Miller,  i.  399,  430;  ii.  176. 
Stedman  v.  Fortune,  i.  272. 

V.  Gassett,  i.  561,  586. 
I".  Mcintosh,  i.  599. 
V.  Smith,  i.  659  ;  iii.  151. 
Steedman  v.  Hiilianl,  iii.  152. 
Steel  V.  Black,  ii.  51. 
V.  Cook,  iii.  522. 
V.  Frick,  i.  572,  576. 
V.  Johnson,  iii.  146,  164. 
V.  Prickett,  iii.  422. 
V.  Steel,  ii.  43,  141 ;  iii.  306,  307, 

358. 
V.  Taylor,  iii.  424. 
Steele  v.  Magie,  i.  224. 

V.  Mart,  i.  440. 
Steele's  Appeal,  iii.  530. 
Steere  v.  Steere,  ii.  503. 
Stegall  V.  Stegall,  i.  243. 
Stein  V.  Burden,  ii.  344;  iii.  53. 
Steinback  v.  Stewart,  iii.  271,  333. 
Steiner  v.  Coxe,  iii.  193. 
V.  Kolb,  ii.  605. 
Stelle  V.  Carroll,  i.  205. 
Stephens  v.  Bridges,  i.  553. 
V.  Gerrard,  iii.  502. 
V.  Hume,  i.  173,  174. 
V.  Huse,  iii.  289. 
V.  Mansfield,  iii.  67. 
V.  Rhinehart,  iii.  288. 
V.  Sherrod,  i.  220 ;  ii.  48. 
V.  Stephens,  ii.  692. 
Stephenson  v.  Haines,  ii.  280. 
V.  Osborn,  i.  344. 
V.  Thompson,  ii.  481. 
Sterling  v.  Baldwin,  iii.  346. 
V.  Penlington,  i.  175. 
V.  Worden,  i.  627,  629,  630. 
Sterry  v.  Ardeu,  iii.  334,  337. 
Stetson  V.  Day,  i.  154. 

V.  Daw,  iii.  99,  395,  430. 
V.  O'SuUivan,  ii.  31. 
V.  Patten,  iii.  278,  280. 
Stevens  v.  Brown,  ii.  110. 

V.  Buffalo  R.  R.,  i.  16. 

V.  Cooper,   ii.   129,    200,    202, 

204. 
V.  Dennett,  ii.  322. 
V.  Dewing,  i.  B-S. 
V.  Enders,  i.  681.. 
V.  Hampton,  iii.  314,  319,  322. 
V.  HoUister,  iii.  128,  149. 
V.  McNamara,  iii.  77. 
V.  Morse,  iii.  318,  333. 
V.  Myers,  i.  348,  410. 
V.  Owen,  i.  209,  247. 
V.  Patterson,  ii.  368. 
r.  Reed,  i.  278. 
V.  Sampson,  i.  613. 
V.  Smith,  i.  200,  223 ;  Hi.  187. 
V.  Stevens,  i.  287,  398,  631,  633, 

637,  640. 
V.  Tafit,  iii.  149,  158,  159. 
V.  Thompson,  i.  663,  664. 
j;.  Wiuship,  i.  119,  120. 


Stevenson  v.  Black,  ii.  121,  123. 

V.  Lambard,  i.  622,  526. 
V.  Maroney,  i.  396. 
Steward  v.  Harding,  i.  607. 
V.  Winters,  i.  546. 
Stewart  v.  Brand,  i.  348,  411. 
V.  Brady,  i.  80. 
i;.  Chadwick,  H.  302  ;    ii.    375, 

484,  526. 
V.  Clark,   i.    118;   ii.    177;    iii. 

235. 
V.  Crosby,  ii.  120, 127, 159, 162, 

172. 
V.  Doughty,  i.  10, 132, 134,  574; 

iii.  346. 
V.  Drake,  iii.  478. 
V.  Fitcii,  iii.  418. 
V.  Hutchins,  ii.  55,  103. 
V.  Lispenard,  iii.  512. 
V.  Mackey,  i.  403,  417. 
V.  McMartin,  i.  302. 
V.  McSweeney,   iii.    226,   318, 

320,  332. 
V.  Pettus,  ii.  510. 
V.  Preston,  ii.  215. 
V.  Roderick,  i.  561. 
;;.  Rogers,  iii.  336. 
V.  Weed,  iii.  287,  290,  295,  298. 
Stickney  v.  Keefe's  Ex'rs,  i.  332. 
Stiewell  v.  Burdell,  ii.  214. 
Stiles  V.  Brown,  iii.  282,  303. 
Stilley  V.  Folger,  i.  322. 
Stillman  v.  White  Rock  Co.,  iii.  159. 
Stillwell  V.  Douglity,  i.  521. 
V.  Hubbard,  iii.  294. 
Stimpson  v.  Butterman,  i.  644. 

V.  Thomastown  Bank,  i.  236. 
Stinebaugh  v.  Wisdom,  i.  173,  175. 
Stinsou  V.  Ross,  ii.  29. 

V.  Sumner,  i.  251,  256  ;  iii.  496. 
Stipe  V.  Stipe,  iii.  478. 
Stoakes  v.  Barrett,  ii.  379. 
Stobie  V.  Dills,  i.  550. 
Stockbridge  Iron  Co.  ;;.  Hudson   Iron 

Co.,  ii.  377  ;  iii.  383,  432,  436. 
Stockliam  v.  Browning,  iii.  430. 
Stocking  V.  Fairchild,  ii.  55. 
Stockton  V.  Martin,  i.  101. 

V.  Williams,  iii.  186,  187,  191, 
193,  331. 
Stockton's  Appeal,  i.  620. 
Stockwell  V.  Campbell,  i.  27. 

V.  Hunter,  i.  17,  545. 
Stoddard  v.  Chambers,  iii.  192,  193. 
V.  Gibbs,  i.  175. 
V.  Hart,  ii.  52,  85,  106,  108. 
V.  Powell,  iii.  53. 
Stoever  v.  Stoever,  ii.  43. 
Stokes  V.  McKibbin,  i.  165,  169. 
Stokoe  V.  Hewsingers,  ii.  370. 
Stolp  ;;.  Hoyt,  iii.  58,  410. 
Stone  V.  Ashley,  ii.  446 ;  iii.  275. 
V.  Augusta,  iii.  410. 
V.  Bale,  i.  440. 
V.  Boston  Co.,  iii.  430. 


en 


TABLE   OF   CASES    CITED. 


Stone  V.  Clark,  iii.  424. 
V.  Darnell,  i.  403. 
V.  Ellis,  ii.  21. 
V.  Griffin,  ii.  510. 
V.  Jackson,  i.  542. 
V.  Lane,  ii.  151,  191. 
V.  Montgomery,  iii.  257. 
V.  Myers,  Iii.  337. 
V.  Patterson,  i.  522 ;  ii.  136. 
V.  Proctor,  i.  19. 
V.  Sprague,  i.  469,  592,  600. 
V.  Willing,  ii.  145. 
Stonehewer  v.  Thompson,  ii.  174. 
Stoner  v.  Ilunsieker,  i.  21. 
Stoney  v.  Bank  of  Charleston,  i.  254. 

V.  Shultz,  ii.  203,  206,  225. 
Stoolfoos  V.  Jenkins,  i.  174. 
Stoppelbein  v.  Shultz,  i.  206. 
Storer  v.  Freeman,  iii.  418,  419. 
Storn  V.  Mann,  i.  161. 
Storrs  V.  Barker,  iii.  83. 
Story  V.  Odin,  ii.  338,  345,  346. 

V.  Saunders,  i.  656. 
Stotesbury  v.  Vail,  i.  551. 
Stoughton  V.  Leigh,  i.  17,  144, 208,  210, 

275,  285,  287. 
Stout  V.  Keene,  i.  518. 
V.  Merrill,  i.  567. 
Stover  V.  Eycleshimer,  ii.  713,  714;   iii. 
95,  348. 
V.  Jack,  iii.  56,  414. 
Stow  V.  Russell,  i.  535. 

V.  Tifft,  i.  220,  222,  227. 
V.  Wyse,  ii.  592 ;  iii.  99,  100. 
Stowell  V.  Flagg,  ii.  351. 

V.  Lincoln,  ii.  351,  369. 
V.  Pike,  ii.  112,  134. 
Strack  V.  Seaton,  i.  561. 
Stratford  v.  Wentworth,  i.  127. 
Straight  v.  Harris,  ii.  211. 
Stratton  v.  Gold,  ii.  92. 
Strauss's  Appeal,  ii.  34,  84,  86. 
Strawn  v.  Strawn,  iii.  115. 
Streaper  v.  Pislier,  i.  496. 
Strickland  v.  Parker,  i.  16. 
Stricklerr.  Todd,  i.  635;  ii.   301,  319, 

320. 
Strimpfler  v.  Roberts,  ii.  479,  480,  493, 

501. 
Stringer  v.  Young,  iii.  192,  193,  194. 
Strobe  v.  Downer,  ii.  259. 
Strobel,  er  parte,  i.  416. 
Strode  v.  Russell,  ii.  140. 
Strong  V.  Blanchard,  ii.  224,  228. 
V.  Brasig,  i.  303. 
V.  Clem,  i.  187,  191,  302,  303. 
V.  Converse,   i.    221,    228,   231, 

232;  ii.  113,  192. 
V.  Doyle,  i.  19. 

V.  Manufacturers'   Ins.    Co.,  ii. 
230. 
Strother  v.  Law,  ii.  69,  73. 

V.  Lucas,  iii.  08,  192. 
Stroud  V.  Casey,  ii.  200. 
Stroyan  v.  Knovvles,  ii.  360. 


Stuart  V.  Kissam,  i.  330. 
V.  Wilder,  i.  338. 
Stubblefield  v.  Graves,  i.  369. 
Stucker  v.  Stucker,  ii.  256. 
Stukely  v.  Butler,  i.  11. 
Stultz  V.  Dickey,  i.  137. 
Stump  V.  Findlay,  i.  119. 
Sturgeon  v.  Wingfield,  i.  453. 
Sturgion  v.  Dorothy  Painter,  i.  451. 
Sturgess  v.  Cleveland,  ii.  149. 
Sturgis  V.  Ewing,  i.  188. 
Sturtevant  v.  Phelps,  i.  292. 

V.  Sturtevant,  ii.  501. 
Stuyvesant  v.  Dunham,  iii.  161. 

V.  Hall,  ii.  148,202,203,211. 
V.  Hone,  ii.  211. 
V.  Mayor  of  New  York,  ii. 
7,  11,  18. 
Style  V.  Wardle,  i.  440. 
Suarez  v.  Pumpelly,  ii.  506,  512. 
Suffield  V.  Baskervil,  ii.  49. 

V.  Brown,  ii.  317. 
Suffolk  Ins.  Co.  V.  Boyden,  ii.  231. 
Sullivan  v.  Enders,  i.  589,  610. 

V.  McLenans,  i.  686  ;  ii.  477. 
V.  Sullivan,  iii.  506. 
V.  Winslow,  i.  397,410,423. 
Sullivan  Co.  v.  Gordon,  iii.  428. 
Sultiff  V.  Atwood,  i.  494. 
Sumner  v.  Conant,  i.  249 ;  iii.  258. 
V.  Hampson,  i.  200,  201. 
V.  Partridge,  i.  178. 
V.  Sawtelle,  i.  359  ;  ii.  530,  531. 
V.  Stevens,  iii.  66,  144,  162. 
V.  Williams,  iii.  367,  436,  437, 
439,  487,  488. 
Sumners  v.  Babb,  i.  290,  303. 
Sunderland  v.  Sunderland,  ii.  474,  475. 
Sunderiin  v.  Struthers,  iii.  99,  117. 
Supervisors  v.  Patterson,  ii.  5. 
Surman  v.  Surman,  ii.  725 ;  iii.  529. 
Sury  V.  Pigot,  i.  59 ;  ii.  315,  324. 
Sussex  V.  Temple,  ii.  613. 
Sussex  Ins.  Co.  v.  Woodruff,  ii.  231. 
Sutherland  v.  .Jackson,  iii.  420. 
Sutphen  v.  Cushman,  ii.  50. 
Suttou  V.  Burrows,  i.  305. 
V.  Calhoun,  iii.  224. 
V.  Cole,  i.  75  ;  ii.  408, 519 ;  iii.  267. 
V.  Manby,  i.  15; 
V.  Mason,  ii.  110. 
V.  Temple,  i.  544. 
V.  Warren,  i.  213. 
Suydam  v.  Bartle,  ii.  248. 
V.  Jackson,  i.  507. 
V.  Jones,  iii.  471. 
Swaine  v.  Ferine,  i.  125,  217,  231,  245, 

293,  294,  298,  299,  320  ;  ii.  212,  214. 
Swan  V  Australian  Co.,  iii.  243. 
V.  Hodges,  iii.  282. 
V.  Moore,  iii.  324. 
V.  Stephens,  i.  387,  425,  430. 
V.  Stransham,  i.  504. 
V.  Wiswall,  ii.  259. 
Swansborough  v.  Coventry,  ii.  305,  376. 


TABLE    OF    CASES    CITED, 


cm 


Swartz  V.  Leist,   ii.  98,  106,   107,   110, 
122,  190,  191. 
V.  Swartz,  i.  635 ;  iii.  388,  390, 
396. 
Swasey  v.  Brooks,  iii.  449. 

V.  Little,  ii.  34,  282 ;  iii.  530. 
Sweatt  V.  Corcoran,  iii.  197,  198. 
Sweet  V.  Brown,  iii.  475. 
V.  Harding,  i.  483. 
V.  Sherman,  ii.  217. 
Sweetapple  r.  Bindon,  i.  165,  166,  225. 
Sweetzer  v.  Jone.s,  i.  14,  26. 
Swetland  v.   Swetland,  ii.  48,  50,  54, 

60. 
Swift  V.  Edson,  ii.  241,  252,  261. 
V.  Gage,  iii.  152. 
V.  Kraemer,  i,  406 ;  ii.  192. 
V.  Mendell,  ii.  244. 
V.  Thompson,  i.  25. 
Swigert  v.  Bank  of  Kentucky,  ii.  219. 
Swinton  v.  Legare,  ii.  552. 
Swislier  v.  WiUiams,  iii.  332. 
Sylvester  v.  Ralston,  i.  592. 
Syme  v.  Saunders,  i.  559,  665. 
Symes  v.  Hill,  ii.  115,  122,  140. 
Symmes  v.  Drew,  i.  308. 
Symonds  v.  Hall,  i.  577. 
Syracuse  City  Bank  v.  Tallman,  ii.  102, 

106,  108,  111,  138,  139,  166. 
Syrou  V.  Blakeman,  i.  631. 


T. 

Tabb  V.  Baird,  ii.  444.' 

Table  Mountain  Tunnel  Co.  v.  Strana- 

han,  ii.  379,  381. 
Tabler  v.  Wiseman,  i.  679,  081,  682. 
Tabor  v.  Grover,  ii.  142. 
V.  Robinson,  i.  26. 
Tadlock  v.  Ecoles,  i.  391,  416 ;  ii.  253. 
Taft  0   Kessel,  ii.  93. 

V.  Stevens,  ii.  141. 
Tainter  v.  Clark,  ii.  508,  509,  511,  643, 

661,  662;  iii.  532. 
Talbot  V.  Brodhih,  ii.  229. 

0.  Whipple,  i.  29,  550. 
Taliaferro  u.  Burwell,  i.  167. 

V.  Pry,  i.  421. 
Tallmadge  v.  East  River  Bank,  ii.  309. 
Tallman  v.  Coffin,  i.  501. 

V.  Ely,  ii.  108,  239 
V.  Snow,  ii.  12,  17. 
Taltarum's  case,  i.  96,  97. 
Tancred  v.  Christy,  i.  593. 
Tanner  v.  Hicks,  ii.  92. 

V.  Hills,  i.  572,  573. 
Tapner  v.  Merlott,  ii.  411. 
Tappan  v.  Burnham,  iii.  128,  142,  204. 
V.  Deblois,  iii.  515,  518. 
V.  Evans,  ii.  248 
V.  Redfield,  iii.  280. 
V.  Tappan,  iii.  144. 
Tarbell  v.  Bowman,  iii.  492. 


Tarpley  v.  Poage,  ii.  478. 
Tarton  v.  Hall,^iii.  102. 

V.  Spring  Creek,  &c.  Co.,  ii.  380, 
Tasker  v.  Bartlett,  iii.  272,  274. 
Tate  0.  Crowson,  i.  481. 
V.  Southard,  iii.  426. 
V.  Stooltzfoos,  iii.  212. 
Tatem  v.  Chaplin,  i.  499. 
Taul  V.  Campbell,  i.  332. 
Taunton  v.  Costar,  i.  613,  623. 
Tayloe  v.  Gould,  i.  175. 
Taylor  v.  Baldwin,  i.  6tJ3;  ii.  88. 
V.  Biddal,  ii.  699 
V.  Blake,  i.  679. 
V.  Boulware,  i.  345,  427,  432. 
V.  Boyd,  iii.  220. 
V.  Broderick,  i.  284. 
V.  Caldwell,  i.  445. 
V.  Chowning,  ii.  68. 
V.  Cox,  i.  646. 
V.  Dean,  ii.  176,  243. 
V.  Dickinson,  ii.  521. 
V.  Eowler,  i.  226. 
V.  Glaser,  iii.  272. 
V.  Hampton,  ii.  343,  373 ;  iii.  62, 

63. 
V.  Hargous,  i.  367,  382,  406,  420. 
V.  Horde,  iii.  127,  132. 
V.  Hunter,  ii.  90. 
V.  Kelly,  iii.  332. 
V.  King,  iii.  2»1,  368. 
V.  Lusk,  i.  305. 
V.  McCrackin,  i.  206,  294. 
V.  Maris,  ii.  211. 
V.  Mason,  ii.  10. 
V.  Morton,  iii.  239. 
V.  Owen,  ii.  283,  287. 
V.  Page,  ii.  47,  247. 
V.  Porter,  i.  65;  ii.  174, 175;  iiL 

212,  214. 
V.  Robinson,  iii.  310. 
V.  Short,  ii.  204. 
V.  Siuim,  i.  .503. 
V.  Steele,  iii.  228. 
V.  Strafford,  iii.  425. 
V.  Sutton,  ii.  8,  23. 
V.  Taylor,  i.  99;  ii.  604,  698. 
V.  Townsend,  ii.  100,  134,  306. 
V.  Waters,  i.  629,  631,  635,  637, 
;;.  Weld,  ii.  45. 
V.  Whitehead,  ii.  338. 
Taylor's  case,  i.  237. 
Teaffv.  Hewett,  i.  22. 
Tebb  p.  Hodge,  ii.  157. 
Teed  c.  C'aruthers,  ii.  90. 
Telford  v.  Barney,  ii.  489. 
Teller's  Lessee  v.  Eckert,  i.  565. 
Templeman  v.  Biddle,  i.  137. 
Ten  Eyck  v.  Holmes,  ii.  215. 
Tenant  c.  (iolihvin,  ii.  305,  365. 
Teneick  r.  Fl^g^■,  iii.  305. 
Tennant  v.  Stoney,  i.  254. 
Tenney  u.  Blanchard,  ii.  260. 
Tenny  v.  Moody,  ii.  434. 
V.  Tenny,  i.  320. 


CIV 


TABLE   OP   CASES   CITED. 


Ter  Haven  v.  Kerns,  ii.  153. 
Terliaw  v.  Ebberson,  iii.  392. 
Terrell  v.  Andrew  County,  iii.  320. 
Terrett  v.  Taylor,  i.  73 ;    iii.  109,  184, 

102,  466. 
Terry  v.  Brigfjs,  ii.  688,  706,  709. 

V.  Chandler,  iii.  87,  88,  121,  425. 
V.  Ferguson,  i.  558. 
V.  Wiggin,  ii.  721. 
V.  Woods,  ii.  122. 
Teschemacher  i-. Thompson,  iii.  189, 418. 
Tew  V.  Jones,  i.  592,  596. 
Tewksburv  v.  O'Connell,  iii.  297. 

V.  Magraff,  i.  566,  567,  568, 
569. 
Texira  v.  Evans,  iii.  240. 
Thacher  i:  Phinney,  iii.  275,  335. 
Thacker  v.  Guardenier,  iii.  157. 
Tharp  v.  Feltz,  ii.  228. 

V.  Fleming,  iii.  216. 
Thatcher  v.  Howland,  i.  247. 

V.  Omans,  i.  60,  333 ;  ii.  398, 

412,  422,  431 ;  iii.  259. 
V.  Powell,  iii.  223,  225. 
Thayer  v.  Bacon,  iii.  86,  87. 

V.  Campbell,  ii.  118,  2-56. 
V.  Clemenoe,  iii.  449,  460. 
V.  Cramer,  ii.  108. 
V.  Mann,  ii.  183,  185,  187,  245. 
V.  Payne,  ii.  318. 
V.  Richards,  ii.  67,  224. 
V.  Society,  &c.,  i.  560,  562. 
Thelluson  v.  Woodford,  ii.  682,  730. 
Thomas  v.  Boerner,  iii.  200. 
V.  Connell,  i.  504. 
V.  Cook,  i.  548,  550,  600,  612. 
V.  Dodge,  i.  373. 
V.  Farmers'  Bank,  ii.  87. 
V.  Freeman,  ii.  714. 
V.  Gammel,  i.  246. 
V.  Garvan,  i.  681. 
V.  Harrow,  iii.  156. 
V.  Hatch,  i.  656. 
V.  Kelsey,  ii.  151. 
V.  McCormack,  ii.  50. 
V.  Marshall,  iii.  196. 
V.  Marshfield,  ii.  272,  368 ;  iii. 

135,  136,  205,  264. 
V.  Patten,  iii.  429. 
V.  Pickering,  i.  657. 
i;.  Poole,  iii.  99,  470,  485. 
V.  Sorrell,  i.  629. 
V.  Stone,  ii.  145. 
V.  Thomas,  i.  215;  ii.352,  373. 
V.  Turvey,  iii.  399. 
V.  Vonkapff,  ii.  230. 
V.  Walker,  ii.  484, 
V.  Wood,  i.  327. 
V.  Wyatt,  iii.  200. 
Thomas'  Appeal,  ii.  129,  150. 
Thomaston  Bank  v.  Stimpson,  ii.  52. 
Thompson  v.  Banks,  iii.  388. 
V.  Bostick,  i.  662. 
V.  Boyd,  i.  206, 233, 239,  281, 
294. 


Thompson  v.  Chandler,  ii.  113, 150, 174, 

179,  195. 
V.  Clark,  i.  559,  565. 
I'.  Cochran,  i.  207. 
V.  Colier,  i.  281. 
V.  Davenport,  ii.  51,  62. 
V.  Egbert,  i.  325,  327. 
V.  Field,  ii.  124. 
V.  Gilliland,  ii.  514. 
V.  Gould,  iii.  237. 
V.  Gregory,  i.  633. 
V.  Hooj),  ii.  719. 
V.  Hudson,  ii.  75. 
V.  Kenyon,  ii.  244,  245. 
V.  Lay,  i.  458. 
V.  Leach,  i.  455 ;  ii.  587 ;  iii. 

249,  284,  310. 
V.  Lloyd,  iii.  301,  537. 
V.  Luddington,  ii.  561. 
V.  McGaw,  i.  321. 
V.  Morgan,  ii.  53  ;  iii.  326. 
V.  Morrow,  i.  288,  289,  290, 

291. 
r.  Sanborn,  iii.  76.  • 
V.  Sanders,  iii.  470,  471. 
V.  Shattuck,  iii.  471. 
V.  Stacy,  i.  305. 
V.  Thompson,   i.-  1.34,    205, 
216,  226,  235,  237;    ii. 
208  ;  iii.  282,  307,  368. 
V.  Wheatley,  ii.  484. 
Thoms  V.  Thorns,  i.  388,  414,  425. 
Thomson  v.  Gilliland,  ii.  514. 
V.  Peake,  ii.  470. 
V.  Ward,  iii.  307. 
V.  Waters,  i.  76. 
Thorn  v.  Thorn,  i.  366. 
Tliornborough  v.  Baker,  ii.  142. 
Thornby  v.  Fleetwood,  ii.  068. 
Thorndike  v.  Barrett,  iii.  205. 
V.  Burrage,  i.  492. 
V.  Richards,  iii.  204. 
V.  Spear,  i.  237. 
Thome,  Goods  of,  iii.  527. 
V.  Newman,  ii.  229. 
V.  Tiiorne,  i.  3-56,  678 ;  ii.  161. 
Thornton  v.  Boyden,  i.  370,  408  ;  ii.  78, 
81. 
V.  Irwin,  ii.  81. 
V.  Knox,  ii.  88,  90. 
V.  Payne,  i.  450. 
V.  Pigg,  ii.  164,  248,  255. 
V.  Trammel,  ii.  2. 
V.  Wood,  ii.  140,  190. 
V.  York  Bank,  i.  656. 
Thorneycroft  v.  Crockett,  ii.  223,  229. 
Thoroughgood's  case,  iii.  287,  299. 
Thorp  V.  Keokuk  C.  Co.,  ii.  209,  210; 
iii.  277,  313,  357. 
V.  Raymond,  iii.  166. 
Thrale  v.  Cornwall,  i.  495. 
Thrasher  v.  Pinckard,  i.  276. 

V.  Tyack,  i.  282. 
Tlirop  V.  Johnson,  ii.  13. 
Thunder  v.  Belcher,  i.  619. 


TABLE   OP   CASES    CITED. 


CY 


Thurber  v.  Townshend,  i.  164, 192. 
Thurman  v.  Cameron,  iii.  279,  315,  326, 
331. 
V.  Cooper,  iii.  437. 
Thursby  v.  Plant,  i.  493,  494,  495,  496, 

604,  522. 
Thurston  v.  Dickinson,  i.  653  ;  ii.  540. 
V.  Hancock,  ii.  359,  360. 
V.  Marldocks,  i.  358,  365,  366. 
V.  Masterson,  i.  686. 
Tibbals  v.  Jacobs,  iii.  296. 
Tibbetts  v.  Estes,  iii.  422. 
V.  Percv,  i.  492. 
V.  Tilto'n,  ii.  475. 
Tibeau  v.  Tibeau,  ii.  51. 
Tice  V.  Annin,  ii.  163,  164. 
Tickle  V.  Brown,  ii.  323,  324,  325. 
Tidd  V.  Quinn,  i.  376,  389. 
Tidey  v.  Mollett,  i.  453. 
Tieruau  v.  Hinman,  ii.  64,  177. 
4       V.  Thurman,  ii.  88. 
V.  Tieman,  i.  391. 
Tift  1-.  Horton,  i.  24. 
Tilden  v.  Tilden,  iii.  505. 
Tilford  V.  Fleming,  i.  517. 
Tilghman  v.  Little,  i.  501,  562. 
TiUinghast  v.  Champlin,  i.  670. 

V.  Coggeshall,    i.    166 ;    ii. 
488,  490,  606. 
Tillotson  V.  Boyd,  iii.  489. 

V.  Millard,  i.    349,    359,    374, 

388,  400,  425 ;  ii.  172. 
V.  Preston,  i.  634. 
Tillman  v.  Cowand,  iii.  319. 
Tilmes  v.  Marsh,  iii.  237. 
Tilson  V.  Thompson,  i.  276 ;  iii.  228. 
Tilton  ?;.  Emery,  iii.  111. 
V.  Hunter,  iii.  319. 
V.  Nel.son,  iii.  82,  83. 
Timmins  v.  Kowlinson,  i.  607. 
Tinkham  v.  Arnold,  ii.  319. 
Tinnicum  Fishing  Co.  v.  Carter,  ii.  366 ; 

iii.  414. 
Tippett  V.  Eyres,  ii.  643. 
Tippin  V.  Cosin,  ii.  429,  430,  431. 
Tipping  V.  Cozzens,  ii.  428. 
Tisdale  v.  Tisdale,  i.  686. 
Tison  V.  Yawn,  i.  560. 
Tissen  v.  Tissen,  ii.  723. 
Titley  v.  Wolstenholme,  ii.  514. 
Titman  v.  Moore,  i.  383,  395,  422. 
Titsworth  v.  Stout,  i.  686. 
Titus  I'.  Morse,  iii.  73,  76,  77. 

V.  Neilson,  i.  206,  207,  295,  300 ; 
ii.  167. 
Tobey  v.  McAllister,  ii.  86,  91. 

V.  Reed,  ii.  136. 
Tod  V.  Baylor,  i.  282,  290,  291. 
Todd  V.  Campbell,  ii.  51. 
V.  Hardie,  ii.  60. 
V.  Jackson,  i.  623. 
V.  Kerr,  iii.  71. 
V.  Wickliffe,  iii.  259. 
V.  Zachary,  i  332. 
Tole  V.  Hardy,  iii.  542. 


Toll  V.  Hiller,  ii.  187. 
Toll  Bridge  v.  Osborne,  i.  18. 
Toller  V.  Atwood,  ii.  602. 
Toilet  V.  Toilet,  ii.  677. 
Tolman  v.  Emerson,  iii.  224. 

V.  Sparhavvk,  iii.  65,  71,  77,  81, 
85. 
Tomkins  v.  Wilterburger,  ii.  203. 
Tomlin  v.  Dubuque  R.  II.,  ii.  368. 

V.  Hilgard,  i.  355,  396. 
Tomlinsou  c.  Dighton,  ii.  579,  721. 

V.  ]\I()nmouth  Ins.  Co.,  ii.  45, 

61. 
V.  Swinney,  i.  345,  420. 
V.  Tomlinson,  iii.  540. 
Tompkins,  Estate  of,  i.  367,  382.  406. 
V.  Fonda,  i.  303. 
V.  Mitchell,  ii.  90. 
V.  Wheeler,  iii.  284,  298. 
Tondro  v.  Cushman,  i.  559. 
Tone  V.  Brace,  i.  488 ;  iii.  489. 
Tong  V.  Marvin,  i.  164. 
Tongue's  Lessee  v.  Nutwell,  iii.  78. 
Took  V.  Glascock,  i.  330. 
Tooke  V.  Hardeman,  i.  324,  326. 
Tooley  v.  Dibble,  iii.  301. 

V.  Kane,  iii.  219. 
Tooms  V.  Chandler,  ii.  49. 
Toomy  v.  McLean,  i.  228,  234. 
Topley  L\  Tople3%  iii.  261. 
Torr's  Estate,  ii.  198. 
Torrane  v.  Conger,  iii.  342. 
Torrence  v.  Carbry,  i.  235. 
Torrey  v.  Cook,  ii.  68. 

V.  Minor,  i.  255;  iii.  466. 
V.  Torrey,  1.  672. 
Torriano  v.  Young,  i.  149. 
Totten  V.  Stuyvesant,  i.  199. 
Touchard  v.  Crow,  iii.  359. 
Touhnin  v.  Austin,  iii.  322,  371. 
V.  Heidelberg,  iii.  259. 
Tousville  V.  Pierson,  i.  355,  395,  421.. 
Towar  v.  Hale,  iii.  264. 
Towle  V.  Ayer,  i.  58. 

V.  Hoit,  ii.  178. 
Town  V.  Hazen,  i.  638. 
Towne  v.  Ammidown,  ii.  522. 

V.  Butterfield,  i.  566,  567,  588. 
Townsend  v  Albers,  i.  612. 
V.  Brown,  iii.  190. 
V.  McDonald,  ii.  323. 
V.  Morris,  iii.  469. 
V.  Townsend,  i.  252. 
V.  Wilson,  ii.  522. 
Townshend,  Matter  of,  iii.  213. 
V.  Corning,  iii.  278. 
Townson  v.  Tickell,  iii.  285,  542. 
Tracy  v.  Atherton,  ii.  329,  333;  iii.  165. 
V.  Hutchins,  iii.  67. 
V.  Jenks,  iii.  326,  332. 
V.  Norwich  &  Wor.  R.  R.,iii.  149. 
V.  Tracy,  i.  160. 
Trafford  u.  Boehra,  ii.  708. 
Trafton  u.  Hawes,  ii.  442,  452;  iii.  334, 
337,  355,  375. 


CVl 


TABLE    OF    CASES    CITED. 


Traip  v.  Traip,  iii.  93. 

Trammell  v.  Trammell,  i.  5,  633 ;   ii. 

303. 
Trapnall  j;.  Brown,  ii.  472,  479,  503. 

V.  State  Bank,  ii.  140. 
Trash  v.  White,  ii.  1»3. 
Trask  v.  Donofjliue,  ii.  508. 
c.  Patterson,  i.  329. 
V.  Wheeler,  i.  475,  477. 
Trawick  v.  Harris,  i.  427. 
Treat  v.  Bates,  ii.  349. 
V.  Pierce,  ii.  243. 
Trent  v.  Banning,  ii.  494. 

V.  Hunt,  ii.  138. 
Trenton  Bank  v.  Woodruff,  ii.  190. 
Treon's  Lessee  v.  Emerick,  i.  655. 
Tress  v.  Savage,  i.  599. 
Trevilian  v.  Andrew,  i.  620. 
Trevor  v.  Trevor,  ii.  425. 
Tribble  i:  Frame,  i.  623. 
Trimleston  v.  Hamill,  ii.  224. 
Trimm  v.  Marsh,  ii.  110,  129,  164,  173. 
Tripe  v.  Marcy,  ii.  101,    133,   181,   183, 

184. 
Tripp  V.  Haseeig,  i.  10 ;  iii.  392. 
V.  Riley,  i.  573. 
V.  Vincent,  ii.  49,  210. 
Tritt  V.  Colwell,  i.  331. 
Trotter  v.  Cassady,  iii.  138. 
V.  Erwin,  ii.  86,  93. 
V.  Hugiies,  iii.  489. 
Trousdall  v.  Darnell,  i.  610. 
Trowbridge,  J.,  Opinion  of,  ii.  99 ;  iii. 
554. 
Eeadiijg  of,  ii.  36,  100, 
514. 
Trowell  v.  Castle,  iii.  245. 
Truck  V.  Lindsey,  ii.  50,  57. 
True  V.  Morrill,  i.  363. 
Truebody  v.  Jacobson,  ii.  90,  93. 
Truesdale  v.  Ford,  iii.  317,  318. 
Truman  i'.  Lore,  iii.  271,  281,  326. 

V.  Waters,  i.  323. 
Trull  V.  Bigelow,  iii.  324,  326,  339. 

V.  Eastman,  ii.  288;  iii.  109,  110, 

111,  348,  475. 
V.  Fuller,  iii.  277,  343. 
V.  Skinner,  ii.  57,  62;  iii.  306. 
Trulock  V.  Kobey,  ii.  224. 
Truscott  V.  King,  ii.  151,  153. 
Trustees  v.  Bigelow,  i.  31. 
V.  Brett,  i.  538. 
V.  Cowen,  ii.  286. 
V.  Dickinson,  iii.  .59. 
V.  Dickson,  ii.   101,   198;    iii. 

59,  410. 
V.  Hart,  iii.  -530. 
V.  Louder,  iii.  422. 
V.  Robinson,  i.  440. 
V.  Spencer,  i.  486;  ii.  281. 
V.  Stewart,  ii.  520. 
V.  Wright,  ii.  93. 
V.  Youmans,  ii.  356. 
Trustees  v.  Zanesville  C.  &  M.  Co.,  iii. 
517,  518. 


Trustees  of  Watertown  v.  Cowen,  ii. 

312. 
Trustoe  v.  Yewre,  iii.  120. 
Tubbs  V.  Hicbardson,  i.  660. 
Tuck  V.  Fitts,  i.  284. 
Tucker  v.  Biifriim,  i.  299;  ii   234. 
V.  Clarke,  iii.  110,  492. 
V.  Fcnno,  ii.  243. 
V.  Kecler,  ii.  101. 
V.  Kenniston,  i.  375,  389,  401. 
V.  Moreland,  i.  456,    458;    iii. 

249,  252. 
V.  Palmer,  ii.  523. 
V.  Wlnte,  ii.  174. 
Tudor  Ice  Company  v.  Cunningham,  ii. 

338. 
Tufts   V.    Adams,   iii.   460,    464,    475, 
495. 
V.  Charlestown,  iii.  99. 
Tully  V.  Davis,  iii.  315. 
Turly  V.  Rogers,  i.  559.  ^ 

Turner  v.  Bouchell,  ii.  75. 
V.  Cameron,  ii.  138. 
V.  Coffin,  iii.  83. 
V.  Doe,  i.  584,  585,  588,  604. 
V.  Eford,  ii.  475. 
V.  Field,  iii.  275. 
V.  Johnson,  ii.  76. 
V.  jMaynott,  i.  622. 
V.  Petigrew^  ii.  484. 
V.  Reynolds,  iii.  390,  392. 
V.  Scott,  iii.  603. 
V.  Stip,  iii.  324. 
V.  Whidden,  iii.  288,  298. 
V.  Withers,  iii.  526. 
Turney  v.  Chamberlain,  iii.  134,  152. 

V.  Smith,  i.  281,  284. 
Turnipseed  v.  Cunningham,  ii.  60. 
Tustin  V.  Fauglit,  iii.  263. 
Tuthill  V.  Tracy,  ii.  239. 
Tuttle  V.  Bean,  i.  611. 
V.  Howe,  i.  400. 
V.  Lane,  ii.  110. 
V.  Heynolds,  i.  558,  600. 
V.  Wilson,  i.  266,  268. 
Twamblv  v.  llenlcv,  iii.  452. 
Tweddell  v.  Tweddell,  ii.  199. 
Twicbell  V.  Bridge,  ii.  242. 
Twining  v.  Morrice,  ii.  525. 
Twisden  v.  Lock,  ii.  557. 
Twort  V.  Twort,  i.  661. 
Twynam  v.  Pickard,  i.  497. 
Tyler  v.  Bennett,  ii.  303. 
l:  J^ckhart,  iii.  236. 
V.  Hammond,  ii.  373,374;  iii.  394, 

420. 
V.  Heidora,  ii.  274,  281,  283. 
V.  Moore,  ii.  603,  604 ;    iii.  438, 

439. 
V.  Tavlor,  ii.  143. 
I'.  Wilkinson,  i.  684 ;  ii.  319,  330, 
348  ;  iii.  52,  54. 
Tyrrel's  case,  ii.  460,  461. 
Tyte  V.  WiUis,  ii.  710. 


TABLE    OP    CASES    CITED. 


cvu 


u. 


Ufford  V.  Wilkins,  iii.  402. 

Uhlin  V.  Hutchinson,  ii.  149. 

Ulp  V.  Campbell,  i.  24G. 

Underliill  ;;.  Saratoga   &   Washington 

R.  R.,  ii.  7,  18,  2;J. 
Underwood  v.  Campbell,  ii.  446 ;  iii.  235, 
272. 
V.  Carney,  ii.  304,  308. 
Union  Bank  v.  Emerson,  i.  23,  24. 
Union  Hall  v.  Jlorrison,  i.  7. 
Unitarian  Society  v.  Woodbury,  ii.  508. 
United  States  v.  Amedy,  ii.  408. 

V.  Ajipleton,  ii.  305,  345. 
V.  Arredondo,  ii.  10 ;  iii. 

iy9. 

V.  Crosby,  iii.  187,  506. 
V.  Fitzgerald,  iii.  201. 
■  V.  Hooe,  ii.  151. 

V.  Huckabee,  iii.  261. 
V.  Linn,  iii.  246. 
V.  Perchman,  iii.  189. 
University   of  Vermont  v.  Josslyn,  i. 

522 ;  iii.  331. 
Updike  V.  Campbell,  i.  468. 
Upham  V.  Varney,  ii.  434,  469,  519. 

V.  Second  Ward  Bank,  i.  404. 
Upshaw  V.  Hargrave,  ii.  88. 
Upton  V.  Archer,  iii.  242. 

V.  Basset,  iii.  337,  338. 
V.  Brazier,  i.  636. 
V.  Greenlees,  i.  530,  534. 
Upwell  V.  Halsey,  ii.  724,  725. 
Urann  v.  Coates,  ii.  528. 
Uridias  v.  Morrell,  i.  616,  617. 
L^sborne  v.  LTsborne,  ii.  130. 
Usher  v.  Richardson,  i.  255. 
Utley  V.  Smith,  ii.  48. 
Uvedall  v.  Uvedall,  i.  155  ;  ii.  509. 


V. 

Vai  V.  Weld,  i.  538. 
Valentine  v.  Havener,  ii.  250. 

V.  Piper,  iii.  54,  419,  420. 

V.  Van  Wagner,  ii.  64. 
Valle  V.  Clemens,  iii.  108. 
Van  Arsdale  v.  Van  Arsdale,  i.  325. 
Van  Arsdall  v.  Fauntleroy,  i.  174, 175. 
Van  Brunt  v.  Mismer,  ii.  49. 
Van  Buren  v.  Olinstead,  ii.  224. 
Van  Cott  V.  Heath,  ii.  47. 
Van  Deusen  v.  Sweet,  iii.  249. 
V.  Turner,  iii.  427. 
V.  Young,  ii.  555 
Van  Doren  v.  Everitt,  i.  137,  459. 

V.  Todd,  ii.  93. 
Van  Duzer  v.  Van  Duzer,  i.  181,  455. 
Van  Dyne  v.  Thayre,  i.  231,  294  ;  ii.  96. 
Van  Etta  v.  Evanson,  iii.  243. 
Van  Gorden  v.  Jackson,  iii.  406,  407. 


Van  Hanswyck  v.  Wiese,  iii.  503. 
Van  Home  v.  Grain,  i.  502. 
V.  Fonda,  i.  086. 
Van  Husan  v.  Kanouse,  ii.  173,  237. 
Van  Kleek  v.  Dutch  Church,  iii.  524, 

525,  541. 
Van  Ness  v.  Hyatt,  ii.  165. 

V.  Packard,  i.  27,  28, 137, 148. 
Van  Nest  v.  Latson,  ii.  196. 
Van  Orden  v.  Van  Orden,  i.  323. 
Van  Pelt  v.  McGravv,  ii.  135. 
Van  Rensselaer  v.  Ball,  ii.  5,  13. 

V.  Bonesteel,    ii.    279, 

283,  285. 
V.  Bradley,  i.  502. 
V.  Chadwick,    ii.    274, 

289. 
V.  Clark,  iii.  324. 
V.  Dennison,  i.  65 ;  ii. 

281,  282. 
V.  Freeman,  i.  552. 
V.  Gallup,  i.  518. 
V.  Havs,  i.   53,  54,  64, 
476,  496,  520,  521 ; 
ii.   274,   275,   276, 

278,  282,  283,  288  ; 
iii.  188,  190. 

V.  Jones,  i.  502. 

V.  Kearney,  i.  62 ;    iii. 

99,  109. 
V.  Penniman,  i.  548. 
V.  Plainer,  ii.  272,  278, 

283. 
V.  Radcliff,  ii.  378. 
V.  Read,  i.  499,  520;  ii. 

272,  273,  276,  278, 

279,  282,  283,  285 ; 
iii.  529. 

V.  Slingeriand.  ii.  281. 
V.  Smith,  i.  65,  471,492, 
496,  497,  498;   ii. 
274,  283. 
V.  Van    Rensselaer,    i. 
467. 
Van  Reynegan  v.  Revalk,  i.  407. 
Van  Santwood  v.  Sandford,  iii.  239. 
Van  Schaick  v.  Tliird  Avenue  R.  R.,  iii. 

313. 
Van  Vronker  v.  Eastman,  i.  208,   297, 

299;  ii.  212. 
Van  Wagner  v.  Hoppin,  ii.  146. 

V.  Van  Nostrand,  iii.  448, 

459,  462. 
V.  Van  Wagner,  ii.  45. 
Van  Wicklen  v.  Paulson,  i.  519. 
Van  Wyck  v.  Seward,  iii.  336. 
Van    Wyck's     Petition,   ii.   509,    512, 

513. 
Vance  v.  Fore,  iii.  397,  428. 
V.  Johnson,  i.  55t). 
V.  Vance,  i.  252,  316,  317,  321, 
322. 
Vancourt  r.  Moore,  iii.  310,  467. 
Vandegraaff  v.  Medlock,  ii.  230. 
Vandeuheuvel  v.  Storrs,  i.  592,  596. 


CVIU 


TABLE   OF    CASES    CITED. 


Vanderhaize  v.  Iliiglies,  ii.  43,  62. 
Vanderheyden  v.  Crandall,  ii.  466 ;  iii. 

14. 
Vanderkan  v.  Vaiiderkan,  iii.  485. 
Vaiiderkemp  r.   Sheldon,  ii.  114,  251, 
^258. 
Vanderpool  v.  Van  Allen,  i.  25. 
Van  der  Voljren  v.  Yates,  ii.  429,  470. 
Vandoren  v.  Todd,  ii.  93. 
Vane  v.  Lord  Barnard,  i.  155. 
Vanhorn  v.  Chestnut,  iii.  194. 
Vanlioriie's  Lessee  v.  Dorrance,  ii.  310. 
Vanmeter  v.  McFaddin,  ii.  84. 

V.  Vanmeter,  ii.  151. 
Vannice  v.  Bergen,  ii.  196. 
Vansant  v.  Almon,  ii.  98,  107. 
Vanzant  v.  Vanzant,  i.  355, 383, 408,  421. 
Varick  v.  Edwards,  ii.  296. 

y.  Smith,  iii.  212,  411. 
Varney  v.  Stevens,  i.  126. 
Varnum  v.  Abbot,  i.  655. 

V.  Meserve,  ii.  69,  71 ;  iii.  78. 
Vasser  v.  Vasser,  ii.  51. 
Vatel  V.  Herner,  i.  532. 
Vaughn  v.  Vaughn,  iii.  505. 
Vau.x  u.  Parke,  ii.  491,  526. 
Veach  v.  Scliaup,  ii.  255. 
Veasey  v.  Trustees,  i.  383. 
Veazie  v.  Dwinel,  ii.  35T  ;  iii.  415. 
Veghte  V.  Raritan  Co.,  i.  630,  636,  639. 
Venable  v.  Beauchamp,  i.  686,  688. 
Vennura  v.  Babcock,  ii.  62. 
Verges  v.  Gibonej',  ii.  191. 
Vermilya  v.  Austin,  i.  533. 
Vermont  v.  Society,  &c.,  ii.  12. 
Verner  v.  Winstanley,  ii.  60. 
Vernon  v.  Bethell,  ii.  60,  62. 

V.  Smith,  i.  497,  499,  501,  558; 
ii.  230  ;  iii.  489. 
Vernon's  case,  i.  274,  314,  315,  316  ;  ii. 

434. 
Verplank  v.  Sterry,  iii.  286,  287,  334. 

V.  Wright,  i.  500. 
Verry  v.  Robinson,  i.  187. 
Very  v.  Watkins,  ii.  248. 
Vick  V.  Edwards,  i.  648. 
Vickerie  v.  Buswell,  ii.  331. 
Vickery  v.  Benson,  iii.  64,  159. 
Vidal  V.  Girard,  ii.   519;  iii.  513,  515, 

517,  518. 
Videau  v.  Griffin,  iii.  280. 
Villiers  v.  Villiers,  ii.  494,  495. 
Vimont  v.  Stitt,  ii.  122. 
Vincent  v.  Bishop,  &c.,  ii.  655. 

V.  Spooner,  i.  321. 
Viner  v.  Francis,  ii.  552. 
V.  Vaughn,  i.  144. 
Vinton  v.  King,  ii.  24G. 
Viser  v.  Rice,  iii.  242. 
Voelckner  v.  Hudson,  i.  272. 
Vogle  V.  Ripper,  ii.  186. 
Volentine  v.  Johnson,  i.  662. 
Voorhees  v.  Presb.  Ch.,  i.  333. 

V.  McGinnis,  i.  21,  22,  24,  26. 
VoorWes  v.  Burshard,  iii.  389. 


Voorhies  i'.  Freeman,  i.  24. 
Vorebeck  v.  Roe,  iii.  345. 
Voris  0.  Renshaw,  ii.  7. 
Vosburg  V.  Teator,  iii.  87,  88,  121. 
Vose  V.  Dolan,  iii.  241. 

V.  Handy,  ii.  100,  116,  127. 
Vosey  V.  Board,  &c.,  i.  422. 
Vrooman  v.  McKaig,  i.  004. 

V.  Shepiierd,  iii.  162. 
Vynior's  case,  iii.  504. 
Vyse  V.  Wakefield,  i.  491. 
Vyvyan  v.  Arthur,  i.  495,  496,  501 ;  ii. 
281. 


w. 


Waddington  v.  Bristow,  iii.  846, 
Waddy  v.  Johnson,  ii.  351. 
Wade  V.  Greenwood,  ii.  87. 
V.  Halligan,  i.  488. 
V.  Harper,  ii.  81. 
V.  Howard,   i.  227,  280;    ii.  125, 

127,  131,  196;  iii.  359. 
V.  Johnson,  i.  26. 
V.  Lindsey,  iii.  107,  145,  831. 
Wadleigh  v.  Glines,  iii.  115. 

i;.  Janvrin,  i.  19,  23,  27. 
Wadsworth  i'.  Loranger,  ii.  50. 
V.  Wendell,  iii.  272. 
V.  Williams,  ii.  192  ;  iii.  334. 
Wadsworthville  School  v.  Meetze,  i.  563, 

570. 
Wafer  v.  Mocato,  ii.  22. 
Waggoner  v.  Hastings,  iii.  154. 
Wagner  v.  Cleveland,  i.  149. 

V.  Wliite,  i.  528. 
Wagstaff  V.  Lowerre,  ii.  529. 
Wainscott  v.  Silvers,  i.  543. 
Wainwright  v.  McCuUough,  iii,  414. 
Wait  V.  Belding,  i.  85,  86. 

V.  Maxwell,  iii.  248,  249. 
Waite  V.  Waite,  i   243. 
Wakeman  v.  Banks,  ii.  105. 
AValcop  V.  McKiiinev,  ii.  110. 
Walden  v.  Bodley,  i"  584. 
V.  Brown,  ii.  175. 
Waldo  V.  Hall,  i.  504. 
Wales  V.  Coffin,  i.  672 ;  iii.  71,  115. 

V.  Mellen,  ii.  66,  100,  112, 
Walker  v.  Barker,  ii.  196. 

V.  Demente,  ii.  123,  247. 

r.  Fitts,  i.  449,  577. 

V.  Forbush,  i.  606,  612, 

V.  Humbert,  i.  653. 

V.  King,  ii.  166,  178, 

V.  Locke,  ii.  432,  504, 

V.  Paine,  ii.  152. 

V.  Physick,  i.  493. 

I'.  Public  Works,  iii.  415, 

V.  Quigg,  ii.  651. 

V.  Richardson,  i.  549,  551, 

V.  Schuyler,  i.  290 

V.  Sedgwick,  ii.  90, 250;  iii.  117, 


TABLE   OF   CASES    CITED. 


CIX 


Walker  v.  Sliarre,  i.  COS,  609. 

V.  Sliemmn,  i.  20,  22,  26. 

V.  Walker,  ii.  432, 525  ;  iii.  283, 

295,  503. 
V.  Williams,  ii.  92. 
Walker's  case,  i.  153,  504,  519,  522. 
Wall  V.  Goodenough,  i.  565,  569. 
V.  Hill,  i.  235. 

V.  Hinds,  i.  504,  521,  54-3,  665. 
V.  Mason,  ii.  133. 
V.  Wall,  iii.  296,  357,  503. 
Wallace  v.  Bowens,  ii.  474. 

V.  DuffielJ,  ii.  476,  484. 

V.  Fe^,  iii.  423. 

V.  Fletcher,  ii.  329 ;  iii.  52. 

V.  Goodall,  ii.  118. 

i>.  Headley,  i.  462. 

V.  Homestead,   i.   66 ;   ii.   272, 

273,  274,  275  ;  iii.  247. 
V.  Lewis,  i.  458  ;  iii.  250,  251. 
V.  iMcCullough,  i.  448. 
V.  Miner,  iii.  106. 
V.  Vernon,  i.  477;  iii.  470. 
Waller  v.  Tate,  ii.  163. 

V.  Von  Phul,  iii.  195. 
Walling  V.  Aiken,  ii.  150. 
Wallinger  v.  Wallinger,  ii.  656. 
Wallis  V.  Cowles,  i.  18. 

V.  Goodyear,  ii.  220. 

V.  Harrison,  i.  458,  629,  631,682, 

634. 
V.  Wallis,  ii.  441 ;  iii.  372,  373. 
Walls  V.  Preston,  i.  573  ;  iii.  384. 
Walhvorth  v.  Derby,  iii.  239. 
W^allwyn  v.  Coutts,  ii.  462. 
Walmsley  v.  Milne,  i.  15,  22,  24,  26 ;  ii. 

157,  171. 
Walsh  V.  Horine,  i.  396. 
*       V.  Ries.  i.  383. 
V.  Young,  i.  457. 
Walsingham's  case,  i.  88,  91. 
Walter  v.  Klock,  ii.  478. 

V.  Post,  i.  631. 
Walters  v.  Breden,  iii.  240,  439. 
V.  Jordan,  i.  243. 
V.  People,  i.  355,  421,  423. 
V.  Pfeil,  ii.  362. 
Walthall's  Ex'rs  v.  Rives,  ii.  68,  170. 
Walton  V.  Cody,  ii.  76. 

V.  Crowley,  i.  503,  504,  523. 
V.  Walton,  iii.  538. 
V.  Waterhouse,  i.  506,  560. 
V.  Willis,  i.  684. 
Wanmaker  v.  Van  Buskirk,  ii.  185. 
Warbass  v.  Armstrong,  ii.  529. 
Ward  V.  Amory,  ii.  495,  600. 

V.  Bartholomew,  iii.  145, 159,  204, 

279,  331. 
V.  Bull,  i.  535. 
V.  Crotty,  iii.  402. 
V.  Deering,  ii.  60. 
V.  Fuller,  i.  59,  237  ;  iii.  323. 
V.  Halm,  i.  359. 
V.  Lewis,  ii.  503;  iii.  294,  299. 
V.  Lumley,  i.  547 ;  iii.  307. 


Ward  V.  Neal,  ii.  347. 
V.  Ross,  iii.  294. 
V.  Sharp,  ii.  258. 

V.  Ward,  ii.  339,  340, 371 ;  iii.  63. 
Warden  v.  Fosdick,  iii.  447. 
Warden  v.  Adams,  ii.  116,  117. 

V.  S.  E.  Railway,  i.  75. 
Ware  v.  Bradford,  iii.  230. 

V.  Brookhouse,  iii.  427. 
V.  Polhill,  ii.  673. 
V.  Richardson,  ii.  468. 
V.  Washington,  i.  194,  276. 
Waring  v.  King,  i.  593. 

V.  Smyth,  ii.  97,  129;  iii.  246. 

V.  Waring,  ii.  528. 
Wark  V.  Willard,''iii.  109,  120,  324. 
Warley  v.  Warley,  i.  123. 
Warman  v.  FaithfuU,  i.  450. 
Warner  v.  Bates,  ii.  506. 

V.  Beach,  iii.  539. 

V.  Bennett,  ii.  6,  12,  14,  20. 

V.  Blakeman,  ii.  77. 

V.  Bull,  iii.  308,  330. 

V.  Everett,  ii.  174. 

V.  Hitchins,  i.  506,  5-35. 

V.  Hoisington,  i.  577. 

V.  Howell,  ii.  667. 

V.  Leland,  i.  14. 

V.  Southworth,  iii.  423. 

V.  Van  Alstyne,  i.  207  ;  ii.  88. 

V.  Warner,  ii.  178 ;  iii.  536. 
Warnock  v.  Wightman,  iii.  318. 
Warren  v.  Blake,  ii.  307,  318. 

V.  Baxter,  iii.  506. 

V.  Chambers,  iii.  56,  60. 

V.  Coggswell,  iii.  399. 

V.  Ferdinand,  i.  469,  5-59. 

V.  Homestead,  ii.  98,  120,  121. 

V.  Jacksonville,  ii.  323. 

V.  Leland,  i.  14. 

V.  Louis,  ii.  44,  60. 

V.  Lynch,  iii.  240,  271,  272,  274.' 

V.  Meyer,  ii.  4. 

V.  Shuman,  iii.  199. 

V.  Twilley,  i.  295. 

V.  Twilley,  i.  199. 

V.  Van  Alstyne,  207. 

V.  Warren,  ii.  219. 
Wartenby  v.  Moran,  ii.  278. 
Warter  u.  Hutchinson,  ii.  406. 
Warwick  v.  Bruce,  iii.  346. 
Washabaugh  v.  Entriken,  iii.  104. 
Washband  v.  Washband,  iii.  335,  368. 
Washburn  v.  Goodwin,  ii.  163. 
V.  Merrills,  ii.  50. 
V.  Sproat,  i.  5,  148,  33.5. 
Washington  v.  Trousdale,  iii.  323. 
Wass  V.  Bucknam,  i.  173,  175,  180. 
Wassail  V.  Tunnah,  i.  352. 
Wasson  v.  English,  ii.  524. 
Waterman  v.  Curtis,  ii.  235. 

V.  Hunt,  ii.  121,  122. 

V.  Johnson,  iii.  409,  416,  417, 

424. 
V.  Matteson,  ii.  106,  135. 


ex 


TABLE   OF   CASES    CITED. 


AVaterman  v.  Smith,  iii.  193,  198. 

V.  Soper,  i.  12. 
Waters  v.  Breden,  ii.  -5;  iii.  398. 
V.  Gooch,  i.  283,  284. 
V.  Groom,  ii.  74. 
V.  Lilley,  ii.  300,  309. 
V.  Randall,  ii.  45,  60,  62,  63. 
V.  Stewart,  ii.  162,  163. 
V.  Waters,  ii.  I'Jl. 
Water's  Appeal,  iii.  76,  82. 
Watkins,  Matter  of,  i.  276. 
V.  Eaton,  i.  687. 
V.  Edwards,  iii.  317,  328. 
V.  Gregory,  ii.  59. 
V.  Hill,  ii.  186. 
V.  Holman,  i.  87,  469 ;  iii.  92, 

218 
V.  Peck,  ii.  302,  325,  329,  .3.30, 

332,  3.53 ;  iii.  53,  54,  79. 
V.  Stockett,  ii.  50. 
Watrous  v.  Blair,  iii.  317. 

V.  Southworth,  iii.  151- 
Watson  V.  Bioren,  ii.  304,  308. 
V.  Cleiidennin,  i.  232. 
V.  Dickens,  ii.  51,  102. 
V.  Foxon,  ii.  557. 
V.  Hill,  i.  666. 
V.  Hunter,  i.  161. 
V.  Mercer,  1.  192 ;  iii.  212,  216. 
V.  O'Hern,  i.  449. 
V.  Peters,  ii.  367;  iii.  411. 
V.  Watson,  i.  173,  180, 181,  277, 

278,  279. 
V.  Wells,  ii.  87,  93. 
Watt  i:  Alvord,  ii.  251. 

V.  Trapp,  ii.  324,  328. 
V.  Watt,  ii.  174. 
Watts  V.  Ball,  i.  163,  165. 
V.  Coffin,  ii.  138. 
V.  Legi^ett,  i.  390. 
V.  White,  ii.  380. 
'Waugh  V.  Riley,  ii.  190,  196. 
Way  f.  Arnold,  iii.  121. 

V.  Reed,  i.  474,  493. 
Wead  V.  Larkin,  iii.  408,  498. 
Weale  u.  Lower,  i.  73 ;  ii.  420,  566,  614, 

61.5,  616,  022  ;  iii  95. 
Weatherbee  v.  13ennett,  iii.  496. 
Weatherby  v.  Smith,  ii.  229. 
Weatliersley  v.  Weathersley,  ii.  51,  57. 
Weaver  v.  Crenshaw,  i.  302. 

V.  Gregg,  i.  192,  199,  295. 
V.  Wible,  i.  686. 
Web  V.  Paternoster,  i.  631. 
Webb  V.  Austin,  iii.  91. 

V.  Bird,  ii.  347  ;  iii.  54. 

V.  Flanders,  ii.  127. 

V.  Hearing,  ii.  710. 

V.  Maxan,  ii.  250. 

V.  Portland  Co.,  ii.  348,  369. 

p.  Richardson,  iii.  140,  155. 

V.  Robinson,  ii.  87,  88,  92. 

V.  Russell,  ii.  284. 

V.  Thompson,  iii.  330. 

V.  Townsend,  i.  209. 


Webb  V.  Webb,  iii.  309. 
Webber  v.  Eastern  R.  R.,  iii.  306. 
Weber  v.  Harbor    Commissioners,    ii. 

367;  iii.  417. 
Webster  v.  Boddington,  ii.  729. 
V.  Calef,  i.  061. 
V.  Campbell,  i.  219,  222. 
V.  ConIe> ,  i.  459,  489. 
V.  Cooper,  ii.  10,  12,   15,  466, 

598,  599,  603. 
V.  Gilman,  iii.  642 
V.  Potter,  i.  5,  6  ;  iii.  389. 
V.  Stevens,  ii.  304,  313,  302. 
V.  Vandeventer,   i.    644,    046, 
648,   671;    iL    143,    251, 
256,  513. 
V.  Webster,  i.    115,    129,    130, 
131,  14.5,  147  ;  iii.  302. 
Webster  Bank  v.  Eldridge,  ii.  513,  661. 
Wedge  V.  Moore,  i.  229,  230,  234,  238 ; 

ii.  192. 
Weed  Sewing  Machine  v.  Emerson,  ii. 

176. 
Weed  V.  Beebe,  ii.  2.52. 

V.  Crocker,  i.  450. 
Weeks  v.  Eaton,  ii.  117,  118. 
Weeras  v.  McCaughan,  iii.  486. 
Weeton  v.  Woodcock;  i.  437. 
Wegg  V.  Villers,  ii.  628,  63L 
Weider  v.  Clark,  i.  409. 
Weidner  v.  Foster,  ii.  137. 
Weigall  V.  Waters,  i.  538. 
Weir  V.  Tate,  i.  174,  197,  210,  257,  28-5. 
Weisbrod  v.  Chicago  &  N.  W.  R.  R.,  iii. 

259,  423. 
Weiser  v.  Weiser,  i.  687. 
Weisinger  v.  Murphy,  i.  180,  181,  657. 
Welborn  v.  Anderson,  iii.  156. 
Welch  V.  Adams,  i.  561 ;  ii.  136. 
V.  Allen,  ii.  466,  494. 
V.  Anderson,  i.  323. 
V.  Chandler,  i.  175,  177. 
t'.  Phillips,  iii.  407. 
V.  Priest,  ii.  101,  115,  117. 
V.  Welch,  i.  331. 
Weld  V.  Nichols,  ii.  285. 
Welland  Canal  v.  Hathaway,  iii.  65, 70, 

73. 
Wellborn  v.  Williams,  ii.  92. 
Weller  ;;.  Weller,  i   171,  263. 
Welles  V.  Castles,  i.  506,  531,  535,  538, 

.543,  545. 
Wellington  v.  Gale,  iii.  230. 

V.  Petitioners,  iii.  211. 
Wellock  V.  Hammond,  ii.  25. 
Wells  V.  Beall,  i.  277. 

V.  Calnan,  iii.  237. 

V.  Chapman,  i.  686. 

V.  Doane,  iii.  532. 

V.  Heath,  ii.  490. 

V.  Jackson  Iron  Co.,  iii.  152, 154j 

155,  407,  429. 
V.  Lewis,  ii.  521. 
V.  Mason,  i.  488,  563. 
V.  McCall,  ii.  497. 


TABLE   OF   CASES   CITED. 


CXI 


Wells  V.  Morrow,  ii.  50;  iii.  324. 
V.  Morse,  ii.  18-2. 
V.  Pierce,  iii.  7'J. 
V.  Preston,  i.  574. 
V.  Prince,  i.  681  ;  iii.  132. 
V.  Robinson,  ii.  478. 
V.  Thompson,  i.  174. 
Welsh  V.  Beers,  ii.  2U7. 
V.  Buckins,  i.  224. 
V.  Foster,  i.  60 ;    ii.    418,   425, 

454  ;  iii.  372,  373. 
V.  Sacket,  iii.  284. 
V.  Usher,  ii.  85. 
Welton  V.  Divine,  ii.  393,  473. 
Wendell  v.  Crandall,  ii.  556. 
Werner  v.  Ropiequet,  i.  484. 
Wesson  v.  Stevens,  iii.  288. 
West  V.  Berney,  ii.  643. 

V.  Clianjberlain,  ii.  241. 
V.  Hendrix,  ii  50,  59,  60. 
V.  Hughes,  iii.  199. 
V.  Stewart,  i.  7  ;  iii.  459,  473. 
V.  Ward,  i.  364. 
West  Point  Iron  Co.  v.  Reymert,  iii. 

433,  443. 
West  River  Bank  v.  Gale,  i.  404,  428. 
Bridge  Co.  v.  Dix,  ii.  295. 
West  Roxbury  v.  Stoddard,  iii.  204, 416. 
Westcott  V.  Delano,  i.  13,  638. 
Westernian  v.  Westernian,  i.  340;  ii.  92. 
Western  Bank  v.  Kyle,  i.  478. 
Western   K.  K.   v.  Babcock,   iii.   288, 

298. 
Western    Transportation    Co.  v.  Lan- 
sing, i.  441,  500. 
Westervelt  v.  Huff,  i.  681. 
Westfall  V.  Lee,  i.  247. 
Westhike  v.  De  Graw,  i.  544. 
Weston  V.  Alden,  ii.  848. 
V.  Hunt,  i.  73. 
V.  Weston,  i.  25. 
V.  Woodcock,  i.  29. 
Wetherbee  v.  Bennett,  iii.  496. 
V.  ElUson,  iii.  393. 
Wetherell,  ex  parfe,  ii.  84. 
Wetniore  v.  Brooklyn  Gas  Co.,  ii.  368. 
V.  Law,  iii.  423. 
V.  White,  iii.  235. 
Wetz  V.  Beard,  i.  426. 
Weyand  v.  Tipton,  iii.  223,  230. 
Weymouth  v.  Sanborn,  i.  401. 
Whalen  v.  Cadman,  i.  348. 
Whaley  v.  Whaley,  i.  571. 
Whalin  V.  White,  i.  560,  561  ;  ii.  239. 
Whaling  Co.  v.  Borden,  i.  668. 
Whalley  v.  Small,  ii.  147 ;  iii.  134. 

V.  Tompson,  iii.  387. 
Wharf  V.  Howell,  ii.  46. 
Wharton  v.  Wharton,  i.  107. 
Whatley  v.  Small,  iii.  324. 
Whatman  v.  Gibson,  ii   309;  iii.  118. 
Wheatley  v.  Baugh,  ii.  325,  351,  352, 
355  357 
V.  Calhoun,  i.  202,  222. 
V.  Chrisman,  i.  635. 


Wheaton  v.  East,  i.  457, 458 ;  iii.  250, 25L 

V.  Peters,  i.  36. 
Wheeler  v.  Bates,  iii.  134. 
V.  Brown,  iii.  436. 
V.  Clutterbuck,  iii.  18. 
V.  Dascomb,  i.  479. 
V.  Earle.,  i.  477. 
V.  Hotchkiss,  i.  182. 
V.  Montefiore,  i.  443. 
V.  Moody,  iii.  138. 
V.  Morris,  i.  251 ;  ii.  2-55, 
V.  Newton,  i.  447. 
V.  Sohier,  iii.  470,  473. 
V.  Spinola,  iii.  141,  417. 
V.  Walker,  ii.  3,  7,  15,  26. 
V.  WiUard,  ii.  178. 
Wheelock  u.  Henshaw,  iii.  111. 
V.  Moulton,  iii.  262. 
V.  Thayer,  iii.  458. 
V.  Warschauer,  i.  561. 
Wheelwright  v.  De  Peyster,  ii.  211. 

V.  Wheelwright,  iii.  288, 
300. 
Whelpdale's  case,  iii.  297. 
Whetstone  v.  Bury,  ii.  448. 
Whilden  v.  Whilden,  i.  323. 
Whipple  V.  Foot,  i.  9,  14 ;  iii.  346. 
Whitaker  v.  Brown,  iii.  433. 
V.  Sumner,  iii.  231. 
V.  Whittaker,  i.  112. 
V.  Williams,  iii.  81. 
Whitbeck  v.  Cook,  iii.  457,  462. 
Whi thread,  ex  parte,  ii.  83. 
Whitcomb  v.  Reid,  i.  388. 
White  V.  Albertson,  ii.  527. 
V.  Arndt,  i.  28. 
V.  Bailey,  iii.  302. 
V.  Brocaw,  iii.  112,  475. 
V.  Brown,  ii.  230,  231. 
V.  Burnley,  iii.  154. 
V.  Carpenter,  ii.  476,  479. 
V.  Casanave,  ii.  87. 
V.  Clark,  i.  396,  421. 
V.  Collins,  i.  100 ;  ii.  603. 
V.  Crawford,  ii.  338,  339,  371. 
V.  Cutler,  i,  130. 
('.  Cuyler,  iii.  277. 
V.  Denman,  ii.  145,  147. 
V.  Dougherty,  ii.  90. 
V.  Elwell,  i.  581. 
V.  Fitzgerald,  ii.  503. 
V.  Flannigain,  iii.  421. 
V.  Foster,  iii.  328,  345,  443. 
V.  Fuller,  i.  442  ;  iii.  330. 
V.  Godfrey,  iii.  420,  422. 
V.  Graves,  iii.  339. 
V.  Hampton,  ii.  193,  508,  510. 
V.  Hicks,  ii.  665. 
V.  Hulme,  i.  331. 
V.  Hunt,  i.  524. 
V.  Livingston,  i.  450,  590. 
V.  Molyneaux,  i.  535. 
V.  Moses,  iii.  210. 
V.  Patten,  i.    4-54 ;    iii.   95,   107, 
109,  118,  466. 


cxu 


TABLE    OF    CASES    CITED. 


White  V.  Polleys,  i.  405  ;  ii.  219. 
V.  Rice,  i.  387,  3"J'J,  413. 
V.  Kittenmcyer,  ii.  103,  110,  141, 

158,  161,  260. 
V.  Sayre,  i.  655. 
V.  Shepperil,  i.  391 ;  ii.  481. 
V.  Story,  i.  286. 
V.  Stover,  ii.  !)2. 
V.  Watts,  ii.  250. 
V.  Weeks,  iii.  370. 
V.  White,   i.   249,   323 ;   iii.   48, 

382,  383. 
V.  Whitney,  ii.  101, 161, 162, 163, 

16'J ;  iii.  469,  470,  475. 
V.  Wiehind,  i.  491. 
V.  Williams,  ii.  90,  92  ;  iii.  406. 
V.  Willis,  i.  209. 
V.  Woodbury,  i.  83. 
Wliite's  Appeal,  i.  28. 
Whiteacre  v.  Sviiionds,  i.  604. 
Wliiteliead  v.  ClitTord,  i.  550. 

V.  Middleton,  i.  226,  322. 
Whithed  v.  Mallory,  i.  217. 
White  Kiver  Turnpike  Co.  v.  Vt.  Cent. 

R.  R.,  ii.  295. 
White    Water    Canal   v.   Comegys,   i. 

161. 
Whiting  V.  Beebe,  ii.  140. 
V.  Brastow,  i.  28. 
V.  Dewey,  iii.  400,  493. 
V.  Gould,  ii.  477. 
V.  Stevens,  iii.  257. 
V.  Whiting,  iii.  163. 
Wliitlock's  case,  i.  520. 
Whitmarsh  v.  Cutting,  i.  1-34. 

V.  Walker,    i.    11,  634  ;  iii. 
.343,  345,  347. 
Whitmore  v.  Delano,  iii.  259. 

V.  Weld,  i.  101. 
Whitney  v.  Allaire,   i.   439,    444,    445, 
451  ;  iii.  447,  492. 
V.  Allen,  ii.  166. 
V.  Buckman,  ii.  41,  46. 
V.  Dewey,  iii.  429. 
V.  Dinsmore,  iii.  460,  464. 
V.  Dutch,  i.  456  ;  iii.  249. 
V.  French,  ii.  55,  97. 
V.  Gordon,  i.  606. 
V.  Holmes,  iii.  87. 
V.  Lee,  ii.  301,  308. 
V.  McKiniiey,  ii.  258. 
V.  Meyers,  i.  549,  612. 
V.  Olney,  iii.  388,  389,  396. 
V.  Smith,  iii.  42.5. 
V.  Spencer,  ii.  10. 
V.  Union  R.  R.  Co.,  ii.  310. 
V.  Whitney,  iii.  14,  541. 
Whitsell  V.  Mills,  i.  243. 
Whittaker  v.  Brown,  iii.  483. 
Whittemore  v.  Gibbs,  ii.  122. 
V.  Moore,  i.  603. 
Whitter  v.  Breraridge,  ii.  717. 
Whittier  v.  Cocheco  M'g   Co.,  ii.   327, 

352,  373. 
Whittington  v.  Wright,  iii.  128,  819. 


Whittlesey  v.  Fuller,  i.  332,  337,  676. 

V.  Iluglies,  ii.  79. 
VVhitton  V.  Wliitton,  i.  655,  678,  681. 
Whitwell  V.  Harris,  i.  470. 
Whitworth  v.  Gaugain,  ii.  83. 
Wlij-ddon's  case,  iii.  299. 
Wickcrman  v.  Savage,  ii.  666, 
Wickersham  v.  Irvin,  i.  504. 

V.  Orr,  i.  636  ;  iii.  441. 
V.  Reeves,  ii.  196. 
Wickes  V.  Caule,  iii.  246. 
Wickham  v.  Hawker,  i.  632. 
Wickman  v.  Robinson,  ii.  93. 
Widger  v.  Browning,  i.  609. 
Wiggin  V.  Chance,  i.  397,  422. 
V.  Swett,  i.  128. 
V.  Wiggin,  i.  596. 
Wiggins  V.  Holley,  iii.  129. 

V.  McCleary,  ii.  307. 
Wigglesworth  v.  Dallison,  i.  137. 
Wight  V.  Shaw,  ii.  552;  iii.  95,  97,  111, 
475. 
V.  Shelby  R.  R.,  iii.  299. 
Wilbrahani  v.  Snow,  i.  660. 
Wilbridge's  case,  i.  678. 
Wilbur  u.  Almy,  ii.  521. 
Wilburn  v.  Spofford,  ii.  69. 
Wilcox  V.  Jackson,  iii.  187,  192. 
V.  Morris,  ii.  43. 
V.  Randall,  i.  200. 
V.  Wheeler,  i.  85  ;  ii.  445,  496. 
V.  Wilcox,  i.  670. 
Wilcoxon  V.  McGee,  iii.  388. 
Wild  V.  Traip,  i.  439. 
V.  Deig,  iii.  213. 
Wild's  case,  iii.  481,  501. 

Lessee  v.  Serpell,  i.   561,   562, 
570. 
Wilde  V.  Armsby,  iii.  246. 

V.  Minsterley,  ii.  359. 
Wilder  v.  Brooks,  i.  333. 

V.  Houghton,  ii.  102,  137,  166. 
V.  House,  i.  626. 
V.  St.  Paul's,  ii.  371. 
V.  Wlutteiniire,  ii.  67. 
Wildey  v.  Barney's  Lessee,  i.  676. 
Wiley  V.  Moor,  iii.  242. 
Wilgus  V.  Gittings,  i.  25. 
Wilhelm  v.  Folnier,  ii.  489. 
Wilhelmi  u.  Leonard,  ii.  193. 
Wilkes  V.  Back,  iii.  278. 

V.  Lion,  ii.  540,  547. 
Wilkins  v.  French,  ii.  140,  141,  162. 
V.  May,  iii.  316. 
V.  Perrat,  ii.  428. 
V.  Sears,  ii.  GO. 
V.  Vashbinder,  iii.  392. 
V.  Wells,  iii.  275. 
V.  Wingate,  i.  558. 
Wilkinson  v.  Davis,  iii.  398. 

V.  Flowers,  ii.  106,  133,  168, 

185. 
V.  Getty,    ii.    676 ;    iii.   259, 

279. 
V.  Hall,  i.  665. 


TABLE   OF    CASES    CITED. 


cxm 


WUkinson  v.  Leland,  iii.  192,  211,  218, 
542. 
V.  Lindgren,  iii.  51G,  534. 
V.  JNIiilin,  ii.  521. 
V.  Parisli,  i.  199. 
V.  Proud,  i.  18. 
V.  Scott,  iii.  92,  376. 
V.  Wilkinson,  ii.  394,  484. 
"Willard  v.  Easthani,  iii.  253. 

V.  Harvey,  ii.  139,  173. 

V.  Henry,  ii.  12,  17. 

V.  Tillman,  i.  496,  498, 520,  521 ; 

ii.  286.      • 
V.  Twitcliell,  iii.  452,  453. 
V.  Warren,  i.  627. 
Willet  V.  Beatty,  i.  207,  295,  296. 
Willett  V.  Winnell,  ii.  62,  63. 
Wiliey  V.  Connor,  i.  493. 

V.  Haley,  i.  113. 
Williams,  ex  parte,  ii.  655. 

V.  Angell,  ii.  13,  20,  589,  607. 

V.  Baker,  iii.  71,  327,  330. 

V.  Bemis,  i.  491. 

V.  Birbeck,  ii.  116,  148. 

V.  Bolton,  i.  1-55. 

V.  Bosanquet,  i.  445,  468,  523. 

V.  Brown,  ii.  477. 

V.  Buker,  iii.  330. 

V.  Burrell,  i.  488,  499,  504. 

V.  Carle,  i.  177. 

V.  Casli,  iii.  98. 

V.  Gaston,  i.  127. 

V.  Crutclier,  iii.  242. 

V.  Dakin,  ii.  20. 

V.  Davis,  iii.  337. 

V.  Deriar,  i.  602. 

V.  East  India  Co.,  iii.  210. 

V.  First  Fresb.  Soc,  ii.  493. 

V.  Fullerton,  ii.  489. 

V.  Garrison,  i.  565. 

V.  Green,  iii.  299. 

V.  Groucott,  i.  17. 

V.  Hale,  i.  362. 

V.  Hayward,  i.  520. 

V.  Hensley,  i.  600. 

■V.  Hicli borne,  i.  113. 

V.  Hilton,  ii.  143,  230. 

V.  Hollingsworth,  ii.  476. 

V.  James,  ii.  335. 

V.  Miller,  iii.  154. 

V.  Morland,  ii.  350. 

V.  Morris,  i.  635,  6.38. 

V.  Nelson,  ii.  3.39,  340,  371. 

V.  Nolen,  i.  573. 

V.  Otey,  ii.  522. 

V.  Owen,  ii.  59. 

V.  Peyton,  iii.  223. 

V.  Roberts,  ii.  91,  93. 

V.  Robson,  i.  246,  250. 

V.  Sorrell,  ii.  148. 

V.  Starr,  i.  419;  ii.  186;  iii. 

274. 
V.  Stratton,  ii.  84. 
V.  Sullivan,  iii.  287.  294. 
V.  Swetland,  i.  348,  411,  424. 

VOL.   I. 


Williams  v.  Thurlow,  ii.  127. 
V.  Turner,  ii.  484. 
V.  Williams,  u.  532 ;  iii.  518, 

520. 
V.  Woods,  i.  207,  252,  296  ;  u. 

88. 
V.  Young,  i.  394  ;  ii.  94. 
Williams'  Appeal,  ii.  278,  282. 
Williamson  v.  Carlton,  iii.  308. 
V.  Champlin,  ii.  248. 
V.  Field,  ii.  250,  542,  547, 

550,  568. 
V.  Gordon,  i.  465. 
V.  Mason,  i.  207. 
V.  Test,  iii.  476. 
V.  Wethered,  i.  362. 
I'.  Wilkins,  ii.  526. 
V.  Williamson,  ii.  607. 
Williamston,  &c.  R.  R.  v.  Battle,  i.  631, 

636. 
Williman  v.  Holmes,  ii.  468. 
Willington  v.  Gale,  ii.  1G2. 
Willink  V.  Jlorris  Canal,  ii.  43, 157  ;  iii. 

106. 
Willion  V.  Berkley,  ii.  543,  547. 
Willis  V.  Farley,  ii.  122. 
V.  Hiscox,  ii.  8. 
V.  Jermine,  iii.  288. 
V.  Vallette,  ii.  107,  118. 
V.  Watson,  iii.  509. 
Willison  V.  Watkins,  i.  558,  565,  569, 

571,  587,  657  ;  ii.  493  ;  iii.  98. 
WiUot  V.  Sanford,  iii.  194. 
Willoughby  v.  Horridge,  ii.  293,  295. 

V.  Willoughby,  i.  465. 
Wilmarth  v.  Bancroft,  i.  9;  ii.  134. 
Wilsey  V.  Dennis,  ii.  113;  ui.  292. 
Wilson,  ex  parte,  ii.  100. 
V.  Black,  iii.  235. 
V.  Cassidy,  iii.  284. 
V.  Cluer,  ii.  236. 
V.  Cochran,  iii.  "449,  457,   461, 

466,  468,  492. 
V.  Davisson,  i.  252;  ii.  86,  88,94. 
V.  Delaplaine,  i.  518. 
V.  Drumrite,  ii.  43. 
V.  Eslmonds,  i.  149. 
V.  Fleming,  i.  675. 
V.  Forbes,   iii.   415,    456,    457, 

492,  493. 
I'.  Fosket,  iii.  540. 
V.  Geisler,  ii.  268. 
V.  Gibbs,  i.  553. 
V.  Graham,  ii.  91. 
V.  Hayward,  ii.  122,  123,  124. 
V.  Hill,  iii.  306,  307. 
V.  Hooper,  ii.  101,  106,  110. 
V.  Hunter,  iii.  396. 
V.  Kimball,  ii.  116,  148. 
V.  Lyon,  ii.  85. 
V.  McLenaghan,  i.  266. 
V.  Martin,  i.  449. 
V.  Nance,  iii.  331. 
V.  Oatman,  i.  291. 
V.  Richards,  ii.  61. 


CXIV 


TABLE   OF   CASES    CITED. 


WUson  V.  Ringr,  ii.  128,  171. 

V.  Russell,  ii.  80,  151, 154. 
V.  Shoenl)erjj:er,  ii.  54,  102,  106. 
V.  Smith,  i.  528,  529,  532,  560. 
V.  Tovvle,  ii.  510,  511. 
V.  Towiisliend,  i.  558. 
V.  Traer,  iii.  314. 
V.  Troup,  ii  (iS,  69,  70,  75,  99, 
117,118,122,639,640,  645, 
649,  663,  664,  665. 
V.  Weathersby,  i.  565. 
V.  Wideuham,  iii.  451. 
V.  Willes,  ii.  369. 
V.  Wilson,  ii.  23,  241,  267 ;  iii. 
18. 
Wilt  V.  Franklin,  ii.  394,  429,  446  ;  iii. 

298,  377. 
Wiltshire  v.  Sidford,  ii.  364. 
Wimple  V.  Fonda,  ii.  543. 
Winans  v.  Peebles,  iii.  368,  377. 
Winciielsea  v.  Wentworth,  ii.  620. 
Winder  v.  Little,  i.  282. 
Windham  v.  Chetwynd,  iii.  506. 

V.  Portland,  i.  305. 
Windsor's  (Dean  of)  case,  i.  499. 
Windt  V.  German  R.  Church,  i.  31. 
Winfield  v.  Henning,  ii.  286,  309. 
Wing  V.  Ayer,  i.  294,  297,  300. 

V.  Cooper,  ii.  34,  45,  51,  52,  56, 

61,  68. 
V.  Cropper,  i.  396. 
V.  Davis,  ii.  181. 
V.  Gray,  i.  17,  28. 
Wingard  v.  Tift,  i.  631. 
Winlock  V.  Hardy,  iii.  90,  97. 
Winn  V.  Cabot,  iii.  400. 
V.  Cole,  ii.  12,  13. 
V.  Littleton,  ii.  140,  141. 
Winnington's  case,  ii.  432. 
Winship  v.  Pitts,  i.  147. 
Winslow  V.  Chidelle,  i.  669. 
V.  Clark,  ii.  251. 
V.  Kiuii,  iii.  422. 
V.  MoCall,  ii.  241. 
V.  Merchants' Ins.  Co.  i.  23,  24  ; 
ii.  100,  157. 
Winstanley  v.  Meacham,  '}%  666. 
Winstead  Savings  Bank  v.  Spencer,  iii. 

276. 
W^inter  v.  Anson,  ii.  90. 

V.  Brockwell,  i.  639 ;  ii.  372. 
V.  Cronimelin,  iii.  193. 
V.  Peterson,  iii.  421. 
V.  Stevens,  i.  58,  585,  627. 
V.  Stock,  iii.  264. 
Winterbottom  v.  Ingham,  i.  592. 
Wintermute  v.  Ligl'it,  i.  10;  iii.  392. 
Winters  v.  McGhee,  i.  665. 
Winthrop  v.  Fairbanks,  iii.  436,  441. 

V.  Minot,  i.  677. 
Winton  v.  Cornish,  i.  545. 
Wiscot's  case,  i.  108. 
Wiswall  r.  Marston,  iii.  408. 
I'.  Ross,  iii.  275. 
V.  Stewart,  ii.  524. 


Wiswall  V.  Wilkins,  i.  646,  653. 
Witham  v.  Cutts,  i.  684. 

V.  Perkins,  i.  180. 
Witherby  v.  Ellison,  i.  19. 
Withers  f.  Baird,  iii.  314. 

V.  Larrabee,  i.  606,  612. 
V.  Yeadon,  iii.  535. 
Wltherspoon  v.  Dunlap,  i.  677. 
Withington  v.  Warren,  iii.  281. 
Withy  V.  Mumford,  iii.  469,  471. 
Witman  v.  Lex,  iii.  515. 
Witter  V.  Briscoe,  i.  249. 

V.  Har^^y,  iii.  421. 
Witty  V.  Matthews,  i.  538. 
Wixon,  Estate  of,  i.  346. 
Wofford  V.  Mclunna,  iii.  156,  223,  225, 

381,  386. 
Wolcott  V.  Knight,  i.  227  ;  ui.  117. 
V.  Spencer,  ii.  240. 
V.  Sullivan,  ii.  148,  180,  181. 
Wolf  V.  Ament,  iii.  153. 

V.  Fleischacker,  i.  366. 

V.  Johnson,  i.  561. 

V.  Van  Metre,  ii.  47. 
Wolfe  V.  Bate,  ii.  514. 

V.  Doe,  ii.  128. 

V.  Frost,  i.  629,  632,  634 ;  ii.  299, 
300,  301,  309. 
Wollaston  v.  Hakewell,  i.  503,  510,  516. 
Wolveridge  v.  Steward,  i.  503. 
Wolverton  v.  Collins,  iii.  294. 
Wonson  v.  Wonson,  iii.  430. 
Wood  V.  Appal,  iii.  414,  430. 

V.  Bank  of  Kentucky,  ii.  89. 

V.  Beach,  iii.  370. 

V.  Black,  i.  99. 

V.  Chambers,  i.  418 ;  iii.  333. 

V.  Cochrane,  iii.  315. 

V.  Felton,  ii.  139,  2-36. 

V.  Ferguson,  iii.  200. 

V.  Fleet,  i.  685. 

V.  Foster,  iii.  427. 

V.  Goodridge,    i.    449 ;    iii.    279, 
280. 

V.  Griffin,  i.  1-50 ;  ii.  559,  704, 742; 
iii.  74,  83,  520. 

V.  Hewett,  i.  30. 

V.  Hubbell,  i.  443,  445,  535. 

?>.  Hustis,  iii.  415. 

V.  Kelley,  ii.  327,  331 ;  iii.  416. 

V.  Leadbitter,  i.  629, 631, 632, 635, 
637,  638,  640. 

V.  Little,  i.  684. 

V.  Lord,  i.  425,  426. 

V.  Manley,  i.  631,  637,  638. 

V.  Mann,  iii.  219. 

V.  Mather,  ii.  530 ;  iii.  49. 

V.  Oakley,  ii.  252. 

V.  Partridge,  i.  509,  525,  526. 

V.  Phillips,  i.  627. 

V.  Robinson,  ii.  532. 

I'.  Trask,  ii.  35,  123,  124,264. 

V.  Waibridue,  i.  552. 

V.  Waud,  ir69;  ii.  348,  358. 

V.  Wheeler,  i.  341,  363. 


TABLE   OF    CASES    CITED. 


cxv 


Wood  V.  Willard.  iii.  428. 
V.  Williams,  ii.  256. 
V.  Wood,  ii.  434,  530,   654 ;    iii. 
541. 
Woodbury  v.  Fislier,  iii.  283,  296. 
V.  Luddy,  i.  349,  424. 
V.  Parshley,  i.  631,  634. 
V.  Short,  iii.  57,  60. 
V.  Woodbury,  i.  593. 
Woodliff  V.  Drury,  ii.  428. 
Woodman  v.  Good,  ii.  527. 

V.  Pease,  i.  22,  27. 
V.  Smith,  iii.  389,  397. 
V.  Spencer,  iii.  412,  421,  423, 
424. 
Woodrow  V.  Mchael,  i.  599,  607. 
WoodrufE  V.  Robb,  ii.  78. 
Woods  V.  Bailey,  ii.  93. 

V.  Banks,  iii.  147,  155. 
V.  Davis,  i.  424. 
V.  Hilderbrand,  ii.  163 ;  iii.  247. 
V.  Sanford,  i.  399. 
V.  Shurley,  i.  320. 
V.  Wallace,  i.  294,  297,  299;  ii. 
53,  59,  61. 
Woodward  v.  Brown,  i.  587. 
V.  Clark,  iii.  318. 
V.  Gates,  i.  157. 
V.  Lazar,  i.  20. 
V.  Lincoln,  i.  372. 
V.  Phillips,  ii.  228. 
V.  Pickett,  ii.  45,  135. 
V.  Seaver,  iii.  257. 
V.  Seeley,  i.  633. 
V.  Woodward,  ii.  88. 
Woodworth  v.  Comstock,  i.  349. 

V.  Guzman,  ii.  43,  145. 
V.  Paige,  i.  250. 
Wooldridge  v.  Wilkins,  i.  201,  206,  219, 

290,  291,  294. 
Wooley  V.  Groton,  iii.  389. 
Woolfolk  V.  Asliby,  iii.  92,  98. 
Wooliscroft  V.  Norton,  i.  500. 
Woolston  y.  Woolston,  ii.  670. 
Wooster  v.   Hunts    Lyman  Iron    Co., 

i.  302. 
Worcester  v.  Eaton,  i.  456,  457  ;  iii.  260, 
332,  839. 
V.  Georgia,   i.    63 ;   iii.    183, 

186. 
V.  Green,  iii.  391. 
V.  Lord,  iii.  161. 
V.  Worcester,  ii.  552 ;  iii.  531. 
Work  V.  Hari)er,  ii.  147. 
Workman  v.  Mifflin,  i.  528,  537. 
Wormley  v.  Wormley,  ii.  524. 
Worrall  v.  Mumi,  iii.'293,  299. 
Worthing  v.  Webster,  iii.  226. 
Worthington  v.  Hylyer,  iii.  397,  402. 

V.  Lee,  ii.  25.5,  257. 
Worthy  ;;.  Johnson,  iii.  210. 
Wortman  v.  Ayles,  iii.  132,  369. 

V.  Skinner,  ii.  525. 
Wragg  V.  Comptroller-General,  ii.  93. 
Wright  V.  Barlow,  ii.  655. 


Wright  V.  Bates,  ii.  51. 

V.  Brandis,  iii.  334. 
V.  Burrows,  i.  476. 
V.  Cartwright,  i.  439 ;  ii.  625. 
V.  Dame,  ii.  86,  93. 
V.  De  Groff,  i.  254, 
V.  Douglass,  ii.  505. 
V.  Dunham,  iii.  226. 
V.  Dunning,  i.  422. 
V.  Eaves,  ii.  98,  107,  122,  183. 
V.  Freeman,  ii.  339,  347. 
V.  Herron,  i.  172. 
V.  Holbrook,  ii.  199. 
V.  Holford,.  ii.  557. 
V.  Howard,  ii.  320. 
V.  Howell,  iii.  334. 
V.  Jennings,  i.  300. 
V.  Keithler,  iii.  136. 
V.  Lake,  ii.  106. 
V.  Lattin,  i.  527,  528,  529,  530. 
V.  Roberts,  i.  593. 
V.  Rose,  ii.  71,  161. 
V.  Rutgers,  iii.  194. 
V.  Saddler,  i.  672. 
V.  Shumway,  ii.  41. 
V.  Stephens,  ii.  572. 
V.  Swan,  iii.  194. 
V.  Tallmadge,  ii.  642,  654. 
V.  Tinsley,  ii.  502. 
V.  Trevezant,  i.  450. 
V.  Tukey,  ii.  165. 
V.  Wakeford,  ii.  655. 
V.  Williams,  ii.  352. 
V.  Wright,  u.  504,  700, 713,  714  ; 
iii.  402,  491. 
Wrotesley  v.  Adams,  ii.  740;  iii.  438. 
Wyatt  V.  Elam,  iii.  317. 

p.  Harrison,  ii.  324,  359,  360. 
V.  Stewart,  ii.  61,  146. 
Wybird  v.  Tuck,  i.  440. 
Wylie  V.  McMakin,  ii.  253. 
Wyman  v.  Babcock,  ii.  182. 

V.  Ballard,  iii.  460,  495. 

V.  Brigden,  i.  87  ;  iii.  495. 

V.  Brown,  ii.  47,  453,  461,  616; 

iii.  132,  308,  375. 
V.  Curtis,  ii.  269. 
V.  Farrar,  i.  544. 
V.  Hooper,  ii.  117. 
V.  Symmes,  iii.  506. 
Wyndham  v.  Way,  i.  11. 
Wynkoop  v.  Burger,  ii.  340. 

V.  Cowing,  ii.  62,  63. 
Wynn  v.  FAy,  ii.  250. 

V.  Harman,  iii.  112. 
V.  Sharer,  ii.  532. 
Wynne  v.  Alston,  ii.  87. 

V.  Governor,  iii.  241. 
Wythe  V.  Tlmrlston,  ii.  656. 


X. 


Xenos  V.  Wickham,  iii.  283,  284,  289. 
292. 


CXVl 


TABLE   OF   CASES   CITED. 


Yale  V.  Deilerer,  iii.  253. 
Yancy  v.  Smith,  i.  325. 
Yarborough  v.  Newell,  ii.  43. 
Yard  v.  Ford,  ii.  302. 
Yarnal's  Appeal,  ii.  5'J8. 
Yarnold  v.  iMooreliouse,  i.  472. 
Yater  v.  Mullen,  i.  8. 
Yates  V.  Aston,  ii.  49. 
V.  Jiuld,  iii.  410. 
V.  Milwaukee,  ii.  367 ;  iii.  417. 
V.  Van  de  Bogert,  iii.  263. 
Yeaton  v.  Koberts,  ii.  551,  552,  5.54,  720. 
Yelland  v.  Ficlis,  ii.  G45. 
Yelverton  v.  Yelverton,  ii.  391. 
Yeo  V.  Mercereau,  i.  224,  225. 
York  &  Jersey  Steamboat  Co.  v.  Jersey 

Co.,  ii.  220. 
York  M'g  Co.  v.  Cutts,  ii.  41. 
York  V.  Jones,  i.  518. 
V.  Stone,  i.  648. 
Yost  I'.  Devault,  i.  411. 
You  V.  Flinn,  ii.  529. 
Youle  V.  Richards,  ii.  51. 
Young,  Matter  of,  ii.  248. 

V.  Adams,  665. 

V.  Dake,  i.  614. 

V.  De  Bruhl,  i.  653. 

V.  Graff,  i.  409 ;  ii.  268. 

V.  Herdie,  iii.  128,  149. 

V.  Keogh,  iii.  229. 

V.  Miller,  ii.   98,   107,  116,   120, 
121. 


Young  V.  Ringo,  iii.  322,  370,  379. 

V.  Roberts,  ii.  70. 

V.  Sniitli,  i.  028. 

V.  Spencer,  i.  146,  147. 

V.  Stoner,  ii.  551. 

V.  Tarbell,  i.  221,  226,  230,  275, 
278. 

V.  Wolcott,  i.  191. 

V.  Wood,  ii.  90. 

V.  Young,  i.  585,  587  ;  ii.  150. 
Youngblood  v.  Vastine,  iii.  325. 
Younge  v.  Guilbeau,  iii.  282,  285,  292, 
294,  322. 
V.  Moore,  iii.  285. 
Youngs  V.  Wilson,  ii.  151,  152. 


z. 


Zane  v.  Kennedy,  ii.  655. 
Zebach  v.  Smith,  ii.  509,  668. 
Zeiter  v.  Bowman,  ii.  139. 
Zeller  v.  Eckhart,  i.  562,  571 ;  ii.  184. 
Zeller's  Lessee  v.  Eckhart,  iii.  142,  163. 
Zentmyer  v.  Mittower,  ii.  93. 
Ziegler  v.  Grim,  i.  682. 
Zimmerman  v.  Anders,  iii.  515. 
Zinc  Co.  V.  Franklinite  Co.,  i.  18. 
Zouch  V.  Parsons,  i.  456,  487  ;  iii.  248, 
249. 
V.  Willingale,  i.  606. 
Zule  V.  Zule,  i.  526. 


LAW    OF    REAL   PROPERTY. 


BOOK  I. 

CORPOREAL    HEREDITAMENTS. 

CHAPTER    I. 

NATURE  AND   CLASSIFICATION  OF  REAL  PROPERTY. 

1.  Introductory. 

2.  Division  of  property  by  the  common  law. 
2  a.  Division  of  property  by  tlie  civil  law,  &c. 

3.  Land  always  real. 

4-4  a.  Houses,  when  personal  and  when  real. 

5-9.  Crops  and  trees,  wlien  personal  and  when  real. 

■   10.  Chattels  fitted  to  realtj',  wlien  real. 

11.  Of  distinct  properties  in  the  same  house. 

12.  Property  in  mines,  &c. 

13,  14.  Corporate  property,  when  real  and  when  personal. 

15.  Property  in  manure. 

16.  Heirlooms. 

17.  Chattel  interests  in  lands. 

18-32.  Fixtures,  when  real  and  when  personal. 

33.  Pews  in  churches  and  burial  rights. 

34.  Money,  when  treated  as  realty. 

35.  Definition  of  lands  and  real  estate. 

36,  37.  Lands,  tenements,  and  hereditaments  defined. 

88,  39.  Distinction  between  Uvery  and  grant. 

40.  Incorporeal  hereditaments. 

41.  Vested  and  contingent,  executory  and  executed  interests. 

42.  Legal  and  equitable  interests. 

43.  Conclusion. 

1.  In  entering  upon  a  work  like  the  following,  it  seems 
unnecessary  to  speculate,  as  many  writers  have  done, 
upon  the  *  origin  of  the  idea  of  property/.    The  right  of     [*2] 
exclusive  enjoyment  by  some  one  individual,  of  portions 
of  what  might,  at  first,  seem  a  common  heritage,  —  the  earth, 


2  LAW   OF  REAL   PROPERTY.  [BOOK   I. 

and  its  products,  —  is  too  well  settled  as  an  elementary  prin- 
ciple in  the  organization  of  society,  to  render  it  necessary  to 
go  behind  the  simple  fact  itself  in  discussing  its  laws.^  This 
right  of  property,  however,  is  so  far  limited,  that  its  use  may 
be  regulated  from  time  to  time  by  law,  so  as  to  prevent  its 
being  injurious  to  the  equal  enjoyment  by  others  of  their 
property,  or  inconsistent  with  the  rights  of  the  community .^ 
2.  The  first  great  division  of  property  is  into  Real  and 
Personal.  This  distinction,  though  now  so  familiar,  seems 
not  to  have  prevailed  until  the  feudal  system  had  lost  its 
hold  upon  the  property  of  England,  and  took  its  rise  from 
the  nature  of  the  remedy  sought  by  one  who  had  been  de- 
prived of  its  possession.  In  the  case  of  lands,  for  instance, 
lie  recovered,  if  at  all,  the  real  thing  lost.  But  for  the 
abstraction  of  a  chattel,  his  remedy  was  against  the  person 
who  had  taken  it  away.^  And,  though  the  line  of  distinction 
between  these  two  classes  of  property  might  seem  to  be 
easily  drawn,  it  will  be  found  that  it  often  assumes  the  char- 
acter of  the  one  or  the  other,  according  to  the  circumstances 
in  which  it  is  placed.  Thus  a  house  or  a  standing  tree  may 
acquire  the  incidents  of  personal  estate,  while  articles  of  a 
movable  character  may  come  to  have  qualities  which  belong 
to  the  realty,  by  the  nature  of  the  use  for  which  they  are 
fitted  and  applied. 

2  a.  This  division  rests  upon  the  feudal  notions  of  prop- 
erty, whereas  the  distinction  recognized  by  the  civil  law 
was  into  res  mancipi  and  res  nee  mancipi^  things  which 
might  or  might  not  be  handled,  or  corporeal  and  incorporeal ; 
while  the  first  class  was  subdivided  into  movable   and  im- 

1  2  Bl.  Com.  1-10 ;  Kaimes,  3d  Hist.  Tract. ;  Maine,  Anc.  L.  c.  8.     "  Of  all 

subjects  of  property,"  says  Lord  Kaimes,  "  land  is  that  which  engages  our 
affections  the  most,  and  for  this  reason  the  relation  of  property  respecting  land 
grew  up  much  sooner  to  its  present  firmness  and  stabihty  than  the  relation  of 
property  respecting  movables."     Tracts,  p.  96. 

2  Commonwealth  v.  Tewksbury,  11  Met.  55 ;  Commonwealth  v.  Alger,  7  Cush. 
53,  86 ;  Cushman  v.  Smith,  84  Maine,  258.  See  Code  Nap.  §  544.  There  is  a 
division  of  things  which  excludes  the  idea  of  separate  individual  property,  such 
as  air,  running  water,  the  sea,  the  sea-shore,  &c.  In  the  words  of  Bracton  : 
"  Naturali  verb  jure  communia  sunt  omnia  haec  aqua  profluens,  aer  et  mare  et 
littora  maris  quasi  maris  accessoria."     c.  12,  §  5. 

3  Wms.  Real  Prop.  7. 


CH.  I.]      NATURE    AND    CLASSIFICATION    OP    REAL    PROPERTY.  3 

movable.  Thus  Biens  comprehended  both  the  real  estate 
aud  personal  chattels  of  the  common  law.  The  distinc- 
tion between  movable  and  immovable  in  the  civil  law  had 
reference  to  the  doctrine  of  usucapion,  answering  to  the 
jnodevn  prescription,  and  to  the  extent  to  which  things  passed 
as  appendant  or  appurtenant  to  immovable  property  in  a  con- 
veyance thereof.^  An  English  writer,  in  treating  of  this 
subject,  regards  real  and  personal,  as  now  applied,  as  de- 
scribing the  quahty  of  things,  while  the  quantity  of  estate 
therein  is  represented  by  the  terms  freehold,  and  chattel.^ 
In  the  Scotch  law,  property  is  divided  into  "heritable"  and 
"movable."^ 

3.  Land  is  always  regarded  as  real  property,  and,  ordi- 
narily, whatever  is  erected  or  growing  upon  it,  as  well  as 
whatever  is  contained  within  it  or  beneath  its  surface,  such 
as  minerals  and  the  like,  upon  the  principle  that  cujiis  est 

1  Austin,  Juris,  xciv. ;  Maine,  Anc.  L.  273-284;  1  Brown,  Civ.  Law,  169; 
Giiterbock's  Bracton,  by  Coxe,  86,  87,  and  note.  Althougli  res  mancipi  was 
applied  only  to  things  which  might  be  handled,  things  of  that  kind  were  not 
necessarily  within  that  class.  The  term  was  applied  to  certain  classes  of  prop- 
erty, to  the  transfer  of  which  by  sale  certain  formalities  were  required  by  the 
early  Roman  law,  the  omission  of  any  one  of  wliich  rendered  the  sale  void.  As 
remarked  by  Mr.  Maine  (p.  276),  "An  ancient  conveyance  was  not  written  but 
acted;  gestures  and  words  took  the  place  of  written  technical  phraseology." 
Thus,  in  order  to  make  a  good  sale  of  lands  consisting  of  Italian  soil,  or  of  slaves 
and  ordinary  beasts  of  burden,  all  of  which  were  res  mancipi,  the  vendee,  in  the 
presence  of  five  witnesses,  and  a  sixth,  who  was  provided  with  copper  scales 
and  called  libripens,  asserted  his  right  to  the  property,  and  struck  tlie  scales 
with  a  piece  of  coin  and  gave  it  to  the  vendor.  There  must  be  an  actual  delivery 
of  the  thing  sold,  and,  if  it  was  land,  it  must  either  be  done  upon  the  land  or  by 
delivery  of  a  sod  or  brick  or  tile  taken  from  it,  in  the  name  of  the  land.  All 
other  corporeal  things  were  included  in  res  nee  mancipi,  and  might  be  trans- 
ferred by  simple  delivery.  Under  the  code  of  Justinian,  this  distinction  was 
done  away  with,  and  delivery  was  the  only  form  required  in  making  transfers 
of  property.  Maine's  Anc.  L.  276,  277  ;  Abdys  &  Watkins'  Gains,  39,  40,  72,  73; 
Mackenzie's  Koraan  Law,  166  ;  Hadley's  Lectures,  86.  Usucapion,  or  taking  by 
use,  was  a  mode  of  acquiring  property  in  a  thing  by  the  possession  and  use  of  it 
for  a  time  prescribed  by  law.  It  applied  to  such  things  only  as  were  acquired 
in  good  faith  by  gift  or  purchase.  By  the  XII.  Tables,  this  term  for  movables 
was  one  year;  for  immovables,  two  years.  Under  the  law  of  Justinian,  three 
years  were  required  in  the  case  of  movables,  and  ten  in  that  of  immovables. 
Gaius,  80 ;  Mackenzie,  187.  Bona,  under  the  Roman  law,  embraced  all  kinds 
of  property.     Mackenzie,  165. 

-  1  Woods,  Convey,  viii. 

3  Ersk.  Inst.  192.     See  2  Shars.  Black.  16,  notes. 


4  LAW   OP   REAL   PROPERTY.  [BOOK   I. 

solum  ejus  est  usque  ad  caelum  in  one  du^ection,  and  usque  ad 
Orcum  in  the  other. ^  Thus  the  road-bed,  the  rails  fastened 
to  it,  and  the  buiklings  at  the  depots  of  raih'oads,  are  real 
property.  And  the  rolling  stock  of  railroads  has  been  held 
to  be  a  fixture  to  such  real  projierty.^ 

/    4.  But  if  a  man,  by  the  permission  of  another,  erects  a 
house  upon  the  other's  land,  it  will,  if  the  builder  have  no 
estate  in  the  same,  be  the  personal  property  of  the  builder.^  J 
If  a  tenant  of  leased  premises  erect  a  house  thereon,  he  has  a 


1  2  Bl.  Cora.  17-19;  1  Law  Mag.  271 ;  Co.  Lit.  4  a;  Wms.  Real  Prop.  14; 
Broom's  Maxims,  290.  Property  in  respect  to  water  is  predicated  only  of  its 
use,  except  as  connected  with  land.  Wliether  and  in  whom  there  is  property  in 
ice  upon  a  stream  or  pond  of  water,  seems  to  be  a  somewhat  unsettled  question, 
so  far  as  decided  cases  are  concerned.  In  Connecticut,  tlie  court  held  tliat  ice 
formed  upon  an  artificial  pond  belonged  to  the  owner  of  the  pond,  and  not  to 
the  riparian  owners.  Mill  River  Co.  v.  Smith,  34  Conn.  462.  In  Massachusetts, 
the  point  was  left  unsettled  in  Cummings  v.  Barrett,  10  Cush.  189.  But  in 
Paine  v.  Woods,  108  Mass.  173,  the  court  regard  ice  formed  upon  a  pond  raised 
by  a  mill-owner  upon  another's  land  as  belonging  to  the  land-owner,  and  that 
he  may  remove  it,  if  he  do  not,  by  so  doing,  appreciably  diminish  the  head  of 
water  at  the  dam  of  the  mill-owner.  Wash.  Easements,  3d  ed.  364.  In  Indiana, 
ice  formed  upon  a  natural  stream  was  held  to  belong  to  the  owner  of  the  land 
forming  the  bed  of  the  stream,  and  was  held  to  apply  where  the  dividing  line 
between  two  adjacent  land-owners  ran  through  an  artificial  pond  raised  by  a  dam 
across  a  natural  stream.  State  v.  Pottmeyer,  33  Ind.  402.  Ice  formed  upon 
public  ponds  in  Massachusetts  may  be  cut  and  carried  away  by  any  one  who 
can  lawfully  gain  access  to  the  same,  provided  he  do  not  thereby  unreasonably 
interfere  with  the  exercise  of  a  similar  right  in  others.  Paine  v.  Woods,  sup. ; 
Inhab.  of  W.  Roxbury  v.  Stoddard,  7  Allen,  158.  Land  is  called  solum,  quia  est 
solidum,  as  stated  by  Coke.  It  comprehends  any  ground,  soil,  or  earth,  as  well 
as  castles,  mansion-houses,  or  other  buildings  erected  thereon,  and  the  mines 
under  the  surface.  But  a  grant  of  water  does  not  include  land,  except  in  the 
case  of  salt  pits  or  springs.  Co.  Lit.  4  a  and  b  ;  1  Atk.  Con  v.  2  ;  Green  v.  Arm- 
strong, 1  Denio,  554 ;  Shep.  Touch.  91.  "  In  its  more  limited  sense,  the  term 
land  denotes  the  quantity  and  character  of  the  interest  or  estate  which  the  ten- 
ant may  own  in  lands."  "When  used  to  describe  the  quantity  of  the  estate, 
'  land  '  is  understood  to  denote  a  freehold  estate,  at  least."  Johnson  v.  Richard- 
son, 33  Miss.  464. 

2  Farmers'  Loan,  &c.  Co.  v.  Hendrickson,  25  Barb.  493.  Cont.  Plattsburg  v, 
P.  &  M.  R.  R.,  54  N.  Y.  314.     See  post,  *  542. 

3  Aldrich  v.  Parsons,  6  N.  H.  555 ;  Osgood  v.  Howard,  6  Greenl.  452  ;  Russel 
V.  Richards,  1  Fairf  429  ;  Ashmun  v.  Williams,  8  Pick.  402 ;  Doty  v.  Gorham,  5 
Pick.  487 ;  Dame  v.  Dame,  38  N.  H.  429,  and  cases  cited  p.  431 ;  Mott  v.  Palmer, 
1  Comst.  571 ;  Rogers  v.  Woodbury,  15  Pick.  156.  And  it  would  remain  so, 
though  the  land-owner  convey  the  land,  and  the  owner  of  the  building  convey 
that,  if  to  different  persons.     Ham  v.  Kendall,  111  Mass.  298. 


CH.  I.]     NATURE    AND    CLASSIFICATION    OF   REAL   PROPERTY.  5 

right  to  remove  the  same  while  in  possession  of  the 
premises.^  If  the  *  builder,  however,  have  an  interest  [*3] 
in  the  land,  such  as  the  husband  of  a  tenant  in  fee,^  or 
as  a  reversioner  or  remainder-man,^  or  be  in  possession  under 
a  contract  of  purchase,*  it  becomes  at  once  a  part  of  the 
realty.  But  a  right  to  erect  a  mill  upon  the  land  of  another 
is  an  incorporeal  hereditament,  which  can  only  be  created  by 
writing.^ 

The  law  as  now  settled,  in  respect  to  the  property  in  build- 
ings erected  by  one  man  upon  the  land  of  another,  seems  to 
be  this:  If  the  building,  or  a  permanent  fixture,  be  erected 
upon,  or  attached  to  the  realty  by  the  owner  of  it,  it  is  not 
the  subject  of  conveyance  as  personalty,  even  by  the  owner 
of  the  freehold.  In  one  case,  the  owner  of  land,  by  an 
arrangement  between  him  and  another  person,  built  a  barn 
on  his  own  land,  which  he  sat  upon  stone  posts,  and  B  was  to 
hire  the  same,  and  upon  paying  for  it  was  to  have  a  right  to 
remove  it.  The  owner  of  the  land  sold  it  to  a  third  party, 
who,  by  parol,  agreed  that  the  barn  should  not  pass  by  the 
deed.  He  sold  the  land  to  another,  but  said  nothing  of  the 
barn.  It  was  held  that  the  title  to  the  barn  passed  with  the 
real  estate,  independent  of  the  parol  agreement  under  which  it 
was  built.6  If  a  building  be  erected  without  the  assent  and 
agreement  of  the  land-owner,  it  becomes  at  once  a  part  of 

1  Kutter  V.  Smith,  2  Wallace,  U.  S.  497.  Hanrahan  v.  O'Reilly,  102  Mass. 
201,  which  was  the  case  of  howling-alleys  erected  by  the  tenant  and  removed 
during  tlie  t6rm.  Antoni  v.  Belknap,  102  Mass.  200.  Where  a  tenant  for  an 
uncertain  period  erected  buildings,  he  was  held  to  have  a  right  to  remove  tliem 
•within  a  reasonable  time  after  the  landlord  had  determined  the  tenancy.  But 
see  O'Brien  v.  Kusterer,  27  Mich.  292. 

2  Washburn  v.  Sproat,  16  Mass.  449 ;  Glidden  v.  Bennett,  43  N.  H.  306. 

3  Cooper  V.  Adams,  6  Gush.  90. 

*  Eastman  v.  Foster,  8  Met.  26 ;  Ogden  v.  Stock,  34  111.  522.  In  Maine, 
where  the  contract  for  purchase  was  by  parol,  a  building  erected  by  the  one 
contracting  to  purchase  was  held  to  be  personal  estate.  Pullen  v.  Bell,  40  Me. 
314.  In  Massachusetts,  where  the  purchaser  held  a  bond  for  a  deed,  it  was  held 
that  a  building  erected  by  him  was  a  part  of  the  really.  Poor  v.  Oakman 
104  Mass.  318. 

6  Trammell  i-.  Trammell,  11  Rich.  471. 

6  Burk  V.  Hollis,  98  Mass.  56 ;  Webster  v.  Potter,  105  Mass.  416 ;  Landon  v. 
Pratt,  34  Conn.  617  ;  Bonney  v.  Foss,  62  Maine,  281 ;  Richardson  v.  Copeland. 
6  Gray,  538 ;  Gibbs  v.  Estey,  15  Gray,  587. 


6  LAW  OF  HEAL  PROPERTY.  [BOOK  I. 

the  realty,  and  is  the  property  of  the  owner  of  the  freehold.^ 
If  the  building  be  placed  upon  another's  land  by  his  assent, 
even  though  there  be  no  express  agreement  on  his  part  that 
the  owner  of  the  building  should  remove  it,  it  would  remain 
his  personal  property  if  placed  upon  blocks  and  not  firmly 
attached  to  the  freehold.^  Fixtures  attached  to  premises  by 
one  in  possession  under  a  contract  of  purchase,  where  he  fails 
to  perform  on  his  part  and  thereby  to  acquire  a  title,  become 
a  part  of  the  realty,  like  fixtures  annexed  b}^  a  vendor  or 
mortgagor,  and  may  not  be  removed  by  him.^  But  where  a 
building  is  erected  upon  the  land  of  another  under  an  agree- 
ment that  the  builder  may  remove  it,  it  will  remain  his  per- 
sonal property ;  nor  would  a  sale  of  the  realty,  under  process 
of  bankruptcy  against  the  land-owner,  pass  any  title  to  the 
building.  Such  an  agreement,  moreover,  may  often  be  im- 
plied by  the  court  from  the  circumstances  of  the  case.'*  The 
follov/ing  case  illustrates  how  a  building  may  retain  its  char- 
acter of  personalty  through  successive  changes  of  ownership 
in  the  land  on  which  it  stands.  J  R,  while  lessee  of  land, 
removed  a  building  on  to  it.  He  then  sold  it  as  a  chattel  to 
his  lessors,  the  owners  of  the  fee,  who,  at  the  same  time,, 
mortgaged  it  as  a  chattel  to  F  R.  The  land  was  then 
under  a  mortgage,  and  the  mortgagee  subsequently  took  pos- 
session of  the  premises.  The  mortgagors  of  the  house  in  the 
mean  time  had  released  their  interest  in  it  to  F  R,  who  sold 
one-half  of  it  to  one  B,  and  the  mortgagee  of  the  land  leased 
the  same  to  F  R  and  B,  with  a  proviso  contemplating  his 
buying  the  building  at  the  expiration  of  the  term.  The 
original  lessors  and  owners  of  the  land  in  fee,  having  become 
bankrupt,  their  title  to  the  land  was  sold,  and  the  purchaser 
paid  off  the  mortgage,  he  knowing  at  the  time  that  F  R  and 
B  claimed  the  building  as  personal  property.     It  was  held 

1  First  Parish,  &c.  v.  Jones,  8  Cush.  184;  Poor  v.  Oakman,  104  Mass.  309, 
317 ;  Webster  v.  Potter,  105  Mass.  414,  416 ;  Howard  v.  Fessenden,  14  Allen, 
128  ;  Oakman  v.  Dorcliester  Mutual,  &c.,  98  Mass.  57 ;  Madigan  v.  McCarthy, 
108  Mass.  376. 

2  Hinckley  v.  Baxter,  13  Allen,  139 ;  Antoni  v.  Belknap,  102  Mass.  200. 
8  McLaughlin  v.  Nash,  14  Allen,  138. 

*  Goodman  v.  Han.  &  St.  Jo.  R.  R.,  45  Mo.  33 ;  Morris  v.  French,  106  Mass. 
826  ;  Howard  v.  Fessenden,  14  Allen,  128. 


CH.  I.]      NATURE    AND    CLASSIFICATION    OF   REAL    PROPERTY.  7 

that  the  building  remained  a  chattel  in  respect  to  its  owner- 
ship through  all  these  changes  of  title  to  the  land.^  But  one 
owning  a  house  as  a  part  of  the  freehold,  by  making  a  mort- 
gage of  it  as  personalty,  without  actually  severing  it  from  the 
freehold,  would  not  give  it  the  character  of  personalty  as 
against  a  purchaser  of  the  freehold.  So,  if  a  tenant  at  will 
remove  a  house  on  to  the  premises,  and  places  it  upon  a  cellar 
with  a  stone  foundation,  he  makes  it  a  part  of  the  freehold, 
and  a  mortgage  of  it  by  him  as  personalty  passes  no  title. ^ 

4  a.  The  civil  law  upon  this  subject  is  said  to  be  substan- 
tially this  :  If  one  builds  upon  his  own  land  with  the  materials 
of  another,  the  building  would  follow  the  property  in  the  soil, 
though  by  the  XII.  Tables  the  owner  of  the  materials  might 
recover  double  their  value.  He  might  not  take  away  the 
house  unless  so  placed  as  to  be  easily  removed.  If  one  built 
with  his  own  materials  upon  another's  land  by  mistake,  the 
house  followed  the  property  in  the  soil.  But  if  the  owner  of 
the  soil  insisted  upon  retaining  the  house,  he  was  liable  to 
pay  the  builder  the  value  of  the  materials  and  work.  But  if— ^ 
one  knowingly  builds  upon  another's  land,  he  is  presumed  to  \ 
have  given  his  materials  and  workmanship  to  the  owner  of  J 
the  soil.^  Whereas,  as  stated  by  the  same  writer,  by  the  com-  J 
mon  law,  if  one,  though  ignorant  of  his  title  or  by  mistake, 
builds  upon  the  soil  of  another,  he  cannot  claim  anything  for 
his  materials  or  workmanship.*  So,  it  has  been  held  in  Penn- 
sylvania, that  if  a  stranger  enter  upon  the  land  of  another, 
and  make  improvements,  and  erect  buildings,  they  become 
the  property  of  the  land-owner.^  A  house  standing  upon 
mortgaged  premises  belonging  to  the  owner  of  the  soil,  is  a 
part  of  the  realty,  and  passes  with  it.  But  in  those  States 
where  a  mortgage  is  a  lien  upon,  and  not  an  estate  in  the 
land,  if  the  mortgagor  in  possession  separates  the  house  from 
the  land,  or  if  he  cut  trees  growing  thereon,  and  carry  them 

1  Morse  v.  French,  106  Mass.  32G.       2  Madigan  v.  McCarthy,  108  Mass.  376. 

3  Bonney  v.  Foss,  62  Maine,  251.     Seepos^  *115. 

*  Wood,  Civ.  L.  B.  2,  c.  3,  p.  114.  See  Broom's  Maxims,  295-297.  It  is 
otherwise  in  equity.  Bright  v.  Boyd,  2  Story  Rep.  605 ;  Union  Hall  v.  Mor- 
rison, 39  Md.  Rep.  281. 

6  Crest  V.  Jack,  3  Watts,  239  ;  West  v.  Stewart,  7  Penn.  St.  122. 


8  LAW   OP   REAL   PROPERTY.  [BOOK   I. 

awa}',  the  mortgagee  cannot  follow  them  to  claim  them.^  So 
if  the  house  be  built  by  one  man  upon  the  land  of  another, 
by  the  consent  of  the  latter,  and  he  sell  the  land,  it  does  not 
pass  a  property  in  the  house,  though  it  would  operate  as  a 
revocation  of  the  license  under  which  the  builder  placed  it 
there.  The  owner  may  always  remove  it  after  notice  of  a 
revocation  of  such  license,  if  done  within  a  reasonable  time.^ 
Or  he  might  sell  it  by  oral  agreement  without  writing.^  Nor 
would  it  make  any  difference  if  the  owner  of  the  land  him- 
self builds  the  house,  if  he  do  so  for  another  who  pays  him 
for  the  same  with  a  right  to  remove  it.^  So  where  A,  by  per- 
mission of  B,  built  a  mill  on  B's  land  under  an  agreement  to 
purchase  the  land  as  soon  as  B  should  have  paid  an  outstand- 
ing judgment  which  formed  a  lien  upon  it,  and  in  the  mean 
time  to  own  the  mill,  and  B  having  failed  to  satisfy  the  judg- 
ment, the  land  was  sold,  it  was  held  that  the  mill  remained 
A's  personal  property,  and  did  not  pass  with  the  estate.^ 
But  where  a  house  had  stood  upon  land  for  thirty  years,  it 
was  held  to  have  become  a  fixture,  and  might  not  be  removed 
against  the  consent  of  the  owner  of  the  soil.^  A  steam  saw- 
mill may  be  personal  property  though  standing  on  another's 
land,  and  may  be  liable  as  such  for  the  owner's  debts,'^  and 
this  although  it  was  originally  placed  there  conditionally,  if 
the  owner  of  the  land  shall  have  failed  to  perform  on  his 
part.^  It  is  a  maxim  of  law,  quicquid  plantatur  solo,  solo 
cedit.^  I  But  to  make  a  thing  part  of  the  realty  by  merely 
annexing  it,  requires  that  he  who  annexes  the  personal  article 
should  own  both  that  and  the  soil  to  which  it  is  annexed.^^"^ 
Where  a  bridge  belonging  to  a  corporation  was  taken  by  a 
flood  and  carried  upon  the  land  of  a  third  person,  and  depos- 
ited there  without  their  fault,  they  did  not  thereby  lose 
their  property  in  it.     The  owner  might  remove  it  fi-om  his 

1  Buckout  V.  Swift,  27  Cal.  437. 

2  Dame  v.  Dame,  38  N.  H.  429 ;  Russell  v.  Richards,  10  Maine,  429 ;  Antoni 
V.  Belknap,  102  Mass.  200. 

-«  Keyset  v.  School  District,  35  N.  H.  480. 

*  Coleman  v.  Lewis,  27  Penn.  St.  291.  5  Yater  v.  Mullen,  24  Ind.  278. 

«  Rcid  V.  Kirk,  12  Rich.  54.  7  State  v.  Bonham,  18  Ind.  233. 

8  Yater  v.  Mullen,  23  Ind.  5G2.  »  Bracton,  10;  Broom,  Max.  295. 

W  Lancaster  v.  Eve,  6  C.  B.,  n.  8.  727,  728 ;  Adams  v.  Smith,  Breese,  221. 


CH.  I.]     NATURE    AND    CLASSIFICATION   OF   REAL  PROPERTY.  9 

premises,  but  he  could  not  have  an  action  against  tliem  for 
the  act  of  its  being  deposited  upon  their  land.^  But  if  one 
hires  an  article,  like  a  steam-engine,  and  so  attaches  it  to  a 
building  upon  his  own  premises  that  it  can  only  be  removed 
by  destroying  the  building,  and  then  sells  or  mortgages  the 
premises  as  real  estate  to  one  who  is  not  cognizant  of  the 
facts,  it  will  be  held  to  pass  a  property  in  the  engine,  and  the 
original  owner  must  look  to  the  party  for  compensation  who 
thus  converted  the  same.^  And  the  same  principle  would 
apply,  if  one  takes  another's  materials  for  building,  and 
works  them  into  a  structure  upon  his  own  land  in  connection 
with  his  own  materials,  and  then  sells  or  mortgages  the  same 
to  another  who  is  ignorant  of  the  fact.^  But  where  a  mort- 
gage creates  an  estate  in  the  land,  and  the  mortgagor  removes 
fixtures  from  the  premises,  the  mortgagee  may  have  trespass 
against  him,  or  if  he  sell  them  to  a  third  person,  the  mort- 
gagee may  require  the  purchaser  to  pay  him  for  them.  Nor 
would  it  make  any  difference  if  the  fixtures  were  parts  of  a 
building  which  had  been  destroyed,  and  which  had  been 
saved,  such  as  doors,  window-blinds,  and  the  like.^ 

5.  So  growing  crops,  planted  by  the  owner  of  the  soil,  con- 
stitute a  part  of  the  realty.  But  if  planted  by  a  tenant  who 
holds  under  the  owner  of  the  soil,  and  the  same  are  fit  for 
harvesting,  or  by  one  whose  tenancy  is  for  an  uncertain  period 
of  time,  annual  crops  are  regarded,  in  many  respects,  as  per- 
sonal property,  liable,  indeed,  to  become  part  of  the  realty, 
if  the  tenant  voluntarily  abandons  or  forfeits  possession  of 
the  premises.^  And  by  this  principle,  where  one  entered 
upon  land  under  an  agreement  of  the  owner  to  sell  it  to 
him,  and  planted  crops,  and  then  the  land-owner  refused 
to  execute  his  agreement  to  convey,  it  was  held  that  the 
tenant  might  claim  the  crops  as  personalty.^  Where,  during 
the  pendency  of  a  process  to  foreclose  a  mortgage,  the  mort- 

1  Livezey  v.  Philadelphia,  64  Penn.  St.  109. 

2  Fryatt  v.  SuUivan  Co.,  6  Hill,  116  ;  Pierce  v.  Goddard,  22  Pick.  559 
8  Ibid.  •«  Wilmarth  i;.  Bancroft,  10  Allen,  348. 

»  Gland's  Case,  6  Rep.  116  a;  Debow  v.  Titus,  5  Halst.  128;  Co.  Lit.  55; 
Whipple  V.  Foot,  2  Johns.  418,  and  421,  n. ;  Chandler  v.  Thurston,  10  Pick.  210. 
6  Harris  v.  Frink,  49  N.  Y.  30. 


10  LAW    OP   REAL   PROPERTY.  [BOOK   I. 

gagor  let  the  premises  to  a  tenant  who  raised  a  crop  upon 
the  same,  and  the  crop  had  been  cut  and  stacked  upon  the 
land  when  the  premises  were  sold  to  foreclose  the  same,  and 
the  purchaser  of  the  land  took  the  crops  and  carried  them 
away,  he  was  held  liable  in  trespass  therefor  to  the  tenant 
as  owner  of  the  crop.^  But  where  crops  were  planted  during 
the  pendency  of  a  suit  in  ejectment  to  recover  the  land,  and 
were  standing  upon  the  land  when  the  plaintiff  in  the  suit 
took  possession  under  a  judgment  in  his  favor,  it  was  held 
he  became  thereby  entitled  to  the  same  as  a  part  of  the 
realty.^  When  standing  crops  have  once  been  sold  and  a 
title  passed,  the  purchaser  has  a  reasonable  time  after  the 
same  are  ripe  to  gather  them,  nor  can  the  land-owner  inter- 
fere with  them  until  after  such  time.^  But  the  law  makes  a 
marked  distinction  between  the  natural  growths  and  products 
of  agriculture  and  the  fructus  industriales  of  land,  —  such 
crops  as  are  of  annual  culture  and  growth.  The  first  are 
regarded  as  an  interest  in  land,  the  sale  of  which  is  within 
the  statute  of  frauds.^  Where  a  tenant  in  the  autumn  sowed 
a  crop  of  barley,  and  in  the  following  spring  gave  up  posses- 
sion to  a  new  tenant,  who  took  charge  of  the  crop  for  him, 
it  was  held  that  a  mortgage  of  the  crop,  by  the  first  tenant, 
while  the  premises  were  in  possession  of  his  successor,  was 
valid  to  pass  the  same.^  Growing  crops,  standing  upon  the 
soil  when  the  latter  is  conveyed,  pass  as  a  part  of  the  realty, 
if  planted  by  the  grantor.^  This  principle  was  held  to  extend 
to  crops  of  corn  standing  in  the  field  unharvested  in  Decem- 
ber, though  one  of  the  judges  dissented  on  the  ground  that 
the  field,  in  such  a  case,  was  to  be  regarded  as  a  storehouse 
for  the  crop.'^  And  the  same  principle  applies  to  trees  planted 
for  sale  by  the  owner  of  the  land.^     And  if  he  devises  his 

1  Johnson  v.  Camp,  51  111.  220. 

2  McLean  v.  Bovee,  24  Wis.  295. 

8  Ogden  V.  Lucas,  48  111.  492;  Stewart  v.  Doughty,  9  Johns.  112. 

*  Pattison's  Appeal,  61  Penn.  St.  297;  Howe  v.  Batchelder,  49  N.  H.  208,  209; 
Green  v.  Armstrong,  1  Denio,  550,  556.  ^  Prj'  v.  Miller,  45  Penn.  St.  441. 

6  Bank  Penn.  v.  Wise,  8  Watts,  406 ;  Wintennute  v.  Light,  46  Barb.  283  , 
contra,  Smith  v.  Johnston,  1  Penn.  R.  471.     See  post,  vol.  2,  p.  *625. 

1  Tripp  V.  Hasceig,  20  Mich.  254,  261 ;  Kittredge  v.  Woods,  3  N.  H.  503. 

8  Smith  V.  Price,  39  III.  23. 


CH.  I.]     NATURE   AND    CLASSIFICATION   OF   REAL   PROPERTY.         11 

farm,  the  crops  then  growing  thereon  pass  with  it.^  But  if 
growing  and  fit  for  harvest  at  his  death,  the  annual  crops  go 
to  the  executor  or  administrator,  and  not  to  the  heir.^  So  if 
trees  are  sold  or  reserved  to  be  cut  and  carried  away  without 
any  right  to  keep  .them  growing  upon  the  land,  and  the  one 
who  has  a  right  to  the  trees  dies,  the  property  in  them  goes 
to  his  personal  representatives,  and  not  to  his  heirs.^  And 
in  this  resjDect  the  common  law  coincides  with  the  law  of 
France,  such  crops  being  deemed  by  that  to  come  within  the 
class  of  immovables.* 

6.  And  although  the  tenant  plant  trees,  they  may  be 
regarded  as  his  chattels,  if  he  has  no  freehold  estate  in  the 
premises,  and  it  is  done  for  the  purpose  of  transplanting  and 
sale,  as  in  the  case  of  nursery-men.^ 

7.  Annual  crops,  though  planted  by  the  owner  of  the 
freehold,  if  fit  for  harvest,^  and  even  trees  growing  thereon, 
may  acquire  the  character  and  incidents  of  personal  prop- 
erty, if  he  sell  them  to  be  cut  and  removed,  without  a 
right  on  the  part  of  the  vendee  to  occupy  the  vendor's  land 
for  growing  or  supporting  them  thereon.'^ 

7  a.  The  law  as  to  growing  trees  may  be  regarded  so  far 
peculiar  as  to  call  for  a  more  extended  statement  of  its  rules 

1  Bradner  v.  Faulkner,  34  N.  Y.  349 ;  Bennett  v.  Hopkinson,  22  Am.  L. 
Reg.  859. 

2  Penhallow  v.  Dwight,  7  Mass.  34 ;  Kingsley  v.  Holbrook,  45  N.  H.  319  ; 
Pattison's  Appeal,  61  Penn.  St.  297 ;  Howe  v.  Batchelder,  49  N.  H.  208,  209. 

3  McClintock's  Appeal,  71  Penn.  St.  367.  •*  Code  Nap.  art.  520. 
6  IMiller  v.  Baker,  1  Met.  27 ;  Whitraarsh  v.  Walker,  1  Met.  313 ;  Penton  v. 

Robart,  2  East,  88 ;  Wyndliam  o.  Way,  4  Taunt.  316,  per  Heath,  J. 

6  Evans  v.  Roberts,  5  B.  &  C.  829 ;  Jones  v.  Flint,  10  A.  &  E.  753 ;  Sains- 
bury  V.  Matthews,  4  M.  &  W.  343,  in  which  cases  crops  of  potatoes  and  corn 
were  held  subjects  of  sale,  though  not  fit  for  harvesting.  But  the  sale  of  a 
growing  crop  of  turnips  was  held  not  to  be  good  as  a  sale  of  chattels.  Emerson 
V.  Heelis,  2  Taunt.  38.  In  Craddock  i'.  Riddlesburger,  2  Dana,  206,  it  was  held 
that  all  fructus  industria,  as  corn,  might  be  sold  as  personalty,  even  while  grow- 
ing and  immature.  See  also  Stambaugh  v.  Yates,  2  Rawle,  161.  See  Durme 
V.  Ferguson,  1  Hayes,  542;  Stephens,  N.  P.  1971;  1  Denio,  555,  556. 

1  Claflin  V.  Carpenter,  4  Met.  580 ;  Smith  v.  Surman,  9  B.  &  C.  561 ;  Stukely 
V.  Butler,  Hob.  178  ;  8.  c.  1  Atk.  175;  Olmstead  v.  Niles,  7  N.  H.  522;  Liford's 
Case,  11  Rep.  50.  The  limitation  in  the  text  is  made  to  avoid,  in  this  stage  of 
inquiry,  the  difficult  question  of  what  constitutes  an  interest  in  lands  within  the 
4th  section  of  the  Statute  of  Frauds,  29  Car.  II.  c.  3;  post,  vol.  3,  *599. 


12  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

as  laid  down  by  different  courts.  And  much  of  what  is  here 
stated  may  be  properly  applied  to  the  case  of  growing  grass 
and  other  products  which  are  not  of  annual  planting  and  cul- 
tivation. In  the  first  place,  trees  which  stand  wholly  within 
the  boundary  line  of  one's  land  belong  to  liim,  although  their 
roots  and  branches  may  extend  into  the  adjacent  owner's 
land.  And  such  would  be  the  case  in  respect  to  the  owner- 
ship of  the  fruit  of  such  trees,  though  grown  upon  the 
branches  which  extend  beyond  the  line  of  the  owner's  land. 
And  trespass  for  assault  and  battery  would  lie  by  the  owner 
of  the  tree  against  the  owner  of  the  land  over  which  .its 
branches  extended,  if  he  prevented  the  owner  of  the  tree, 
by  personal  violence,  from  reaching  over  and  picking  the 
-fruit  growing  upon  these  branches,  while  standing  upon  the 
fence  which  divided  the  parcels.^  But  the  adjacent  owner 
may  lop  off  the  branches  or  roots  of  such  trees  up  to  the  line 
of  his  land.  If  the  tree  stand  so  nearly  upon  the  dividing 
line  between  the  lands  that  portions  of  its  bod}''  extend  into 
each,  the  same  is  the  property,  in  common,  of  the  land-own- 
ers. And  neither  of  them  is  at  liberty  to  cut  the  tree  without 
the  consent  of  the  other,  nor  to  cut  away  the  part  which 
extends  into  his  land,  if  he  thereby  injures  the  common  prop- 
erty in  the  tree.^ 

Trees  growing  upon  land  constitute  a  portion  of  the  realty, 
and  pass  by  a  mortgage  of  the  land,  and  the  mortgagee  could 
not  otherwise  sell  them  to  another,  than  the  land  itself.^  And 
if  nursery-trees  are  planted  by  the  owner  of  the  land,  they 
would  pass  by  a  mortgage  of  the  land,  though  planted  after 
the  mortgage  is  made.^    A  different  rule  would  apply  between 

1  Hoffman  v.  Armstrong,  48  N.  Y.  201. 

2  Dubois  V.  Beaver,  25  N.  Y.  123  ;  Waterman  v.  Soper,  1  Ld.  Raym.  737  ; 
Skinner  v.  Wilder,  38  Vt.  115;  Lyman  v.  Hale,  11  Conn.  177;  Griffin  v. 
Bixby,  12  N.  H.  454  ;  Masters  v.  Pollie,  2  Roll.  Rep.  141  ;  Holder  v.  Coates, 
1  Moody  &  M.  112,  3  Kent,  438.  See,  on  same  subject,  Dig.  47,  7,  6,  2;  Inst. 
2,  1,  31 ;  Bracton,  10  ;  Code  Nap.  §§  670,  673.  Among  the  Greeks,  by  the  laws 
of  Solon,  oHve  and  fig  trees  might  not  be  planted  nearer  the  owner's  line  than 
nine  feet,  and  other  trees  nearer  than  five  feet,  in  order  to  guard  against  this 
spreading  of  the  roots,  &c.  into  the  lands  of  the  adjacent  owner.  1  Potter's 
Antiq.  166. 

3  Hutchins  v.  King,  1  Wallace,  U.  S.  59. 

*  Maples  V.  Millon,  31  Conn.  598;  Price  v.  Brayton,  19  Iowa,  309. 


CH.  I.]     NATURE   AND    CLASSIFICATION   OP   KEAL   PROPERTY.         13 

landlord  and  tenant  if  they  were  planted  by  the  tenant  for 
purposes  of  trade. ^ 

Trees  cut  and  lying  upon  the  soil,  as  well  as  trees  thrown 
down  by  the  wind,  would  pass  with  the  land  as  a  part  of  the 
realty.  It  would  be  otherwise  if  the  trees  had  been  cut  into 
logs  or  hewed  into  timber.^ 

Many  cases  have  seemed  to  treat  a  sale  of  growing  trees  as 
if  they  were  chattels,  and  as  being  effectual  to  pass  a  property 
in  them  before  they  are  cut,  although  not  evidenced  by  a  deed. 
But  it  is  apprehended  that  this  doctrine,  which,  at  first  thought, 
would  seem  to  be  incompatible  with  the  Statute  of  Frauds, 
may  be  reconciled  by  treating  such  sale,  if  by  parol,  as  a 
license  rather  than  a  grant  of  an  interest  in  real  estate,  and 
which,  though  liable  to  be  revoked,  if  executed  carries  the- 
property  in  such  of  the  trees  as  shall  have  been  severed  from 
the  freehold.  Such  a  parol  sale  of  trees,  till  actually  per- 
fected by  a  severance  of  them  from  the  freehold,  is,  moreover, 
to  be  deemed  as  executory,  and  may  be  defeated  by  a  con- 
veyance of  the  freehold.  Thus,  a  sale  of  such  trees  being 
within  the  Statute  of  Frauds,  must  be  evidenced  b}^  writing.^ 
And,  if  regarded  as  sufficient  to  vest  an  interest  in  them 
between  the  parties,  and  possibly  third  parties  cognizant  of 
the  sale  having  been  made,  it  would  not  be  of  any  validity 
against  the  purchaser  of  the  freehold  without  notice,  but  the 
trees  and  crops  would  pass  therewith.^  But  if,  under  such 
sale,  the  purchaser  has  executed  the  license  by  which  he  was 
permitted  to  cut  the  trees,  the  license  becomes  irrevocable, 
and  the  purchaser  may  enter  and  remove  them.  If  it  has  not 
been  executed,  the  whole  rests  in  contract,  and,  so  long  as 
the  timber  or  other  product  of  the  soil  continues  in  its  natural 
condition,  and  no  act  is  done  by  the  vendee  towards  its  sepa- 
ration from  the  soil,  no  property  or  title  thereto  passes  to  the 
vendee.  A  revocation  of  the  license  to  enter  on  the  land, 
whether  by  a  deed  of  the  freehold  or  otherwise,  does  not 

1  Price  V.  Brayton,  sup. 

«  Bracket  v.  Goddard,  54  Me.  313  ;  Cook  v.  Whiting,  16  111.  481. 

3  McGregor  v.  Brown,  10  N.  Y.  117  ;  Green  v.  Armstrong,  1  Denio,  550;  Car- 
rington  v.  Koots,  2  M.  &  W.  248. 

*  Wescott  V.  Delano,  20  Wise.  516,  517  ;  Gardiner  Mg.  Co.  v.  H-jald,  5  GreenL 
(Me.)  381 ;  Drake  v  Wells,  11  Allen,  144. 


14  LAW  OF  REAL  PROPERTY.  [BOOK  L 

defeat  any  valid  title,  or  deprive  the  owner  of  chattels  that 
are  upon  the  same  of  his  property  in  or  possession  of  them. 
But  if  the  contract  for  the  sale  of  the  trees  be  executory  only, 
no  title  has  passed  to  the  vendee.^  The  same  effect,  however, 
of  passing  property  in  trees  may  be  accomplished  by  convey- 
ance of  them  by  deed  as  growing  trees,  if  done  by  the  owner 
of  the  freehold.  It  is  so  far  considered  a  severance  of  the  prop- 
erty in  the  trees  from  that  in  the  soil,  that  the  vendee  may, 
after  that,  sell  and  pass  title  to  them  by  a  mere  writing,  though 

they  have  not  been  actually  severed  from  the  soil.^ 
[*4]         *  8.  So,  in  favor  of  creditors,  crops  fit  for  harvesting 

may  be  levied  upon  as  personal  chattels.^ 

9.  But  if  the  owner  of  land  grants  the  trees  growing  thereon 
to  another  and  his  heirs,  with  liberty  to  cut  and  carry  them 
away  at  his  pleasure,  forever,  the  grantee  acquires  an  estate  in 
fee  in  the  trees,  with  an  interest  in  the  soil  sufficient  for  their 
growth,  while  the  fee  in  the  soil  itself  remains  in  the  grantor.* 
And  a  like  effect  is  produced  in  favor  of  the  grantor  by  reserv- 
ing the  trees  in  granting  the  land,  giving  him  a  life  estate  or 
a  fee  according  to  the  terms  of  the  reservation.^  But  the 
grant  of  the  use  of  the  timber  upon  land  is  an  incorporeal 
hereditament,  and  does  not  convey  a  title  to  the  timber,  or  to 
the  soil.^ 

10.  On  the  other  hand,  things  in  themselves  movable,  and 
having  the  character  of  personalty,  may  acquire  that  of  realty, 
by  being  fitted  and  applied  to  use  as  a  part  of  the  realty, 
though,  at  the  time,  temporarily  disanuexed  therefrom ;  and 
they  would  pass  accordingly  with  the  land,  upon  a  sale  thereof, 
or  go  to  an  heu'  or  devisee  as  realty.''    Among  these,  for  illustra- 

1  Drake  v.  Wells,  U  Allen,  142,  143 ;  Nettleton  v.  Sikes,  8  Met.  35;  Douglas 
V.  Slmmway,  13  Gray,  502. 

^  Kingsley  v.  Holbrook,  45  N.  H.  319,  322  ;  Bank  of  Lansingburgh  v.  Crary, 
1  Barb.  542 ;  Warren  v.  Leland,  2  Barb.  613.  See  the  subject  of  the  sale  of 
trees  and  the  like,  further  considered  post,  vol.  3,  *599. 

'■i  Penhallow  v.  Dwight,  7  Mass.  34 ;  Heard  v.  Fairbanks,  5  Met.  111.  And 
in  the  cases  above  cited,  2  Rawle,  161,  and  2  Dana,  206,  it  was  held  that  this 
might  be  done  before  they  were  mature.  Pattison's  Appeal,  61  Penn.  297 ; 
Whipple  V.  Foot,  2  John.  423  ;  Evans  v.  Roberts,  5  B.  &  C.  829. 

*  Clap  V.  Dra[)er,  4  Mass.  266 ;  Knotts  v.  Hydrick,  12  Rich.  314. 

5  Knotts  V.  Hydrick,  nap. ;  Rich  v.  Zeilsdorf,  22  Wis.  544. 

«  Clark  V.  Way,  11  Rich.  621. 

1  1  Wms.  Ex'rs,  613-615;  Sweetzer  v.  Jones,  35  Vt.  322, 


en.  I.]     NATURE   AND    CLASSIFICATION   OF   REAL   PROPERTY.         15 

tion,  would  be  keys  of  locks  upon  doors,  fire-frames,  doors, 
window-blinds,  mill-stones,  and  irons  taken  out  of  a  mill  for 
repair,  bolts  and  other  machinery  of  a  flouring  mill,^  and  frag- 
ments of  a  house  destroyed  by  a  tempest.^  So,  upon  the  sale 
of  a  "  saw-mill,"  with  the  land  on  which  it  stood,  the  iron 
bars  and  chains  then  in  it,  and  used  for  operating  it,  passed  as 
a  part  of  the  realty.^  So  by  the  civil  codes  of  France  and 
Louisiana,  many  things  in  their  nature  movable  acquired  the 
character  and  qualities  of  things  immovable  by  reason  of  the 
uses  for  which  they  were  destined  and  applied.  Among  these 
were  animals  employed  in  husbandry,  farming  utensils,  plants, 
manure,  doves  in  a  pigeon-house,  and  all  such  movables  as  the 
owner  has  permanently  attached  to  property  that  is  itself  im- 
movable. In  England  it  has  lately  been  held  that  the  owner 
of  land  has  a  property  in  the  wild  game  thereon  ratione  soli, 
for  the  killing  of  which  he  may  have  an  action  against  a  stran- 
ger.^ And  this  right  of  property  attaches  eo  instanti  tlvAt  the 
animal  is  killed,  but  not  until  then  ;  nor  does  it  make  any  differ- 
ence, in  this  respect,  whether  it  is  killed  by  the  owner  of  the 
land  or  a  trespasser  upon  it.  There  can  be  no  property  in 
animals  ferce  natures  running  wild,  so  long  as  they  are  alive  ; 
and  if  such  animal  voluntarily  pass  from  the  land  of  one  on  to 
that  of  another,  the  latter  may  at  once  kill  it,  and  thereby 
acquire  a  property  in  it.^  And  in  Louisiana,  slaves  were 
considered  as  immovables,  and  they  partook  of  the  inherit- 
able quality  of  real  property  in  some  other  of  the  States.^ 
It  was  formerly  held  in  Virginia  that  slaves  might  be  conveyed 
to  uses,  and  were  within  the  Statute  of  Uses.'^  By  the  Scotch 
law,  materials  collected  for  the  erection  of  houses  are  not 
heritable  property  until  united  to  the  surface  of  the  earth  by 
actual  building.     But  the  materials  of  a  building  which  has  ^ 

1  Colegrave  v.  Dias  Santos,  2  B.  &  C.  76 ;  Walmsley  v.  Milne,  7  C.  B.,  n.  s. 
115 ;  Liford's  Case,  11  Eep.  50 ;  House  v.  House,  10  Paige,  Cii.  162  ;  McLaugh- 
lin V.  Johnson,  46  111.  165. 

2  Rogers  v.  Gillinger,  30  Penn.  St.  185. 
2  Farrar  v.  Stackpole,  6  Greenl.  154. 

4  Blades  v.  Higgs,  13  C.  B.,  n.  s.  844 ;  Rigg  v.  Lonsdale,  1  Hurlst.  &  N.  923. 

5  Blades?;.  Higgs,  11  H.  L.  Cases,  630-641;  Sutton  r.  Manby,  1  Ld.  Raym. 
250. 

6  Code  Nap.  art.  524 ;  Louis.  Cod.  art.  459, 461 ;  Chinu  v.  Respass,  1  Mon.  25. 
f  Custis  V.  Fitzhugh,  Jeffers.  Rep.  72. 


16  LAW  OF  REAL  PROPERTY.  [BOOK  I 

been  torn  down  with  an  intent  to  rebuild  the  same,  retain  the 
character  of  being  heritalle,  though  actually  severed  from  the 
land.i  The  subject  is  considered  quite  at  length  by  the  court 
of  New  York  in  connection  with  the  question  whether  the 
rolling  stock  of  railroads,  such  as  cars,  engines,  and  the  like, 
passed  under  a  mortgage  of  the  same  as  real  estate  ;  and  it 
was  held  that  they  did.  The  decisions  in  New  York,  until 
lately,  left  the  question  doubtful  whether  the  rolling  stock  of 
a  railroad  was  a  fixture  or  mere  personal  property.^  But  the 
latest  reported  case  seems  to  settle  the  law  by  declaring  it 
personal  estate,  and  no  part  of  the  realty.^  But  in  Illinois, 
it  is  held  that  rolling  stock,  rails,  ties,  chairs,  and  spikes,  and 
other  like  materials,  brought  upon  the  land  of  the  railroad 
company,  whose  railroad  is  covered  by  a  mortgage,  if  the 
same  is  procured  and  designed  to  be  attached  to  the  realty, 
are  to  be  regarded  as  a  part  of  the  realty,  though  not  actually 
attached  thereto,  and  to  be  held  by  the  mortgage  accordingly.^ 
The  subject  of  the  rolling  stock  being  a  fixture  to  a  railroad 
was  discussed  by  the  court  of  the  United  States,  and  held  to 
be  such,  in  technical  language,  "  so  far  as  in  its  nature  and 
use  it  can  be  called  a  fixture."  It  is  such,  not  upon  any  par- 
ticular part  of  the  road,  but  attaches  to  every  part  and  portion. 
And  the  reporter  has  an  extended  note  to  the  same  case  in 
which  he  learnedly  discusses  the  question,  "Is Rolling  Stock  a 
Fixture  ?  "  He  examines  the  general  subject  of  the  law  of  fix- 
tures, and  "  the  conclusion  is,  that  rolling  stock  put  and  used 
upon  a  railroad  passes  with  a  conveyance  of  the  road,  even 
without  mention  or  specific  description."  ^  In  addition  to  the 
classes  of  articles  above  enumerated,  the  court,  upon  the  author- 
ity of  decided  cases,  held  that  a  statue  or  a  sun-dial  upon  a  stone 
block  erected  or  standing  upon  land  by  way  of  ornament  or 
otherwise,  would  pass  with  it  as  a  part  of  the  realty.    So  would 

1  Ersk.  Inst.  200;  Wood,  Civ.  L.  114. 

2  Farmers'  Loan  Co.  v.  Hendrickson,  25  Barb.  484;  Stevens  v.  Buffalo  R.  R., 
31  Barb.  590 ;  Hoyle  v.  Plattsburg,  &c.  R.  R.,  51  Barb.  63. 

3  Hoyle  V.  Plattsburg,  &c.  R.  R.,  54  N.  Y.  314.       See  also  Randal  v.  Elwell, 
52  N.  Y.  521 ;  post,  vol.  2,  *542. 

*  Palmer  v.  Forbes,  23  111.  301 ;  M'Laughlin  v.  Johnson,  46  111.  165.     See  post, 
vol.  2,  *542.     See  also  Strickland  v.  Parker,  54  INIaine,  267. 
6  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wallace,  644,  645-649. 


CH.  I.]  NATURE  AND  CLASSIFICATION  OF  REAL  PROPERTY.    17 

hop-poles,  though  taken  down  for  the  purpose  of  gathering 
the  hops,  or  piled  in  the  yard  ;  as  well  as  rails  of  a  Virginia 
fence,  or  the  loose  stones  of  which  a  wall  is  constructed.'  But 
peat  cut  for  fuel,  lying  on  land,  is  personal  estate. ^ 

11.  A  dwelling-house  may  be  the  subject  of  ownership  in 
fee,  although  its  owner  may  have  no  further  interest  in  the 
land  on  which  it  stands  than  a  right  to  have  it  remain 
there.  So  one  may  have  an  estate  in  a  single  chamber  in  a 
dwelling-house,^  and  may  have  a  seisin  of  such  house  or  cham- 
ber, and  maintain  ejectment  therefor,  if  deprived  of  its 
possession,'*  *  although  if  such  house  or  chamber  be  [*5] 
destroyed,  all  interest  of  the  owner  thereof  in  the  land 

on  which  it  stood  might  thereby  be  lost.^ 

12.  Where  there  are  mines,  slate  quarries,  and  the  like,  in 
land,  there  may  be  a  double  ownership  of  such  land,  one  of 
the  mines,  the  other  of  the  soil,  and  these  may  be  held  by  dif- 
ferent persons  by  separate  and  independent  titles,  each  having 
a  fee  or  lesser  estate  in  his  respective  part.^  And  an  incident 
to  the  ownership  of  a  mine,  where  another  owns  the  surface, 
is  the  duty  of  keeping  the  entrance  to  it  so  guarded  as  not  to 
endanger  the  safety  of  the  animals  lawfully  upon  the  surface.'' 
The  question  in  such  cases  ordinarily  is,  whether  the  interest 
of  the  one  claiming  the  minerals  is  that  of  a  corporeal  here- 
ditament, or  a  mere  easement  in  another's  land.  If  the  grant 
be  of  the  minerals  in  a  particular  locality,  it  carries  an  estate 
in  the  minerals  as  a  part  of  the  realty.     From    the  nature 

1  Farmers'  Loan,  &c.  Co.  v.  Hendrickson,  25  Barb.  484,489, 491, 49G;  post,  vol.  2, 
p.  *542  ;  Snerleker  v.  Warring,  2  Kern.  170,  case  of  Thorn's  Statue  of  Washington  ; 
Bishop  V.  Bishop,  1  Kern.  123,  case  of  hop-poles  ;  Mott  v.  Palmer,  1  Comst.  564, 
case  of  rails  of  fences  ;  Goodrich  v.  Jones,  2  Hill,  142.  See  also  Phillips  v.  Wins- 
low,  18  B.  Mon.  431,  as  to  rolling  stock  of  a  railroad  ;  Y.  B.  14  Hen.  VIII.  25,  pi.  6, 
case  of  a  millstone.  See  Broom's  Maxims,  295  et  seq.  Wing  v.  Gray,  36  Vt. 
269 ;  Glidden  v.  Bennett,  43  N.  H.  306 ;  Kipley  v.  Paige,  12  Vt.  353. 

2  Gile  V.  Stevens,  13  Gray,  149. 

3  Doe  V.  Burt,  1  T.  R.  701 ;  Proprietors  v.  Lowell,  1  Met.  538 ;  Cheeseborongh 
V.  Green,  10  Conn.  318;  Co.  Lit.  48  b  ;  Loring  v.  Bacon,  4  Mass.  576  ;  1  Prest. 
Est.  214;  Humphries  j;.  Brogden,  12  Ad.  &  El.  n.  s.  747,  756  ;  Ehodes  ';.  Mo- 
Cormick,  4  Iowa,  375.  *  Doe  v.  Burt,  uh.  sup. ;  Otis  v.  Smith,  9  Pick.  293. 

5  Stockwell  V.  Hunter,  11  Met.  448. 

6  Stoughton  V.  Lee,  1  Taunt.  402  ;  Harris  v.  Ryding,  5  M.  &  W.  60  ;  Ilarker 
V.  Birbeck,  3  Burr.  1556 ;  Green  v.  Putnam,  8  Cush.  21 ;  Adams  v.  Briggs,  7 
Gush.  361.  T  Williams  v.  Groucott.  4  Best  &  S.  164. 

VOL.  I.  2 


18  LAW    OF    REAL    PROPERTY.  [BOOK    I. 

of  these  inheritances,  the  laws  of  property  in  them  must  be  so 
adapted  as  to  give  to  each  the  enjoyment  of  what  belongs  to 
him.  While,  therefore,  the  mine-owner  may  not  remove  the 
necessary  subterranean  support  of  the  surface,  the  surface- 
owner  may  not  impose  additional  burdens  by  artificial  struc- 
tures erected  thereon,  to  be  supported  by  the  mine-owner.^ 

13.  If  a  corporation  owns  lands  as  a  part  of  its  property, 
and  its  capital  stock  be  divided  into  shares  which  are  held  by 
individuals,  such  lands  would  be  the  real  estate  of  the  artifi- 
cial person  —  the  corporate  body,  while  the  interest  of  the 
individual  stockholders  in  the  same  would  ordinarily  be  per- 
8onal.2 

14.  If,  however,  the  corporation  be  created  solely  for  the 
purpose  of  holding  and  making  use  of  real  estate,  the  shares 
therein  may  be  real  estate.  In  one  case,  it  was  so  held  where 
the  object  was  to  make  a  canal,  erect  water-works,  and  the 
like,^  in  another  to  construct  a  turnpike,*  and  in  another  to 
construct  and  manage  a  railroad.^  But  these  were  clearly 
exceptions,  under  the  construction  of  the  statutes  creating 
them,  to  the  general  rule  applicable  to  shares  in  incorporated 
companies.  There  was  an  early  statute  of  Massachusetts, 
whereby  owners  of  lands  in  common  were  authorized  to  act 
as  a  corporate  proprietary,  in  the  management  or  disposal  of 
the  same,  but  where  the  interest  of  each  proprietor  still  re- 
tained its  character  of  realty.^ 

15.  Manure  made  upon  a  farm  in  the  ordinary  manner, 
from  the  consumption  of  its  products,  is  regarded  in 

[*6]     this  country  as  *  belonging  to  the  realty,  and  would 
pass  with  the  farm  if  sold,  and  may  not  be  i-emoved  by 

1  Harris  v.  Ryding,  5  M.  &  W.  60  ;  Wilkinson  v.  Proud,  11  M.  &  W.  33 ;  Brown 
V.  Bobbins,  4  H.  &  Norm.  186  ;  Shep.  Touch.  89  ;  Curtis  v.  Daniel,  10  East,  273 ; 
Humphries  v.  Brogden,  12  Ad.  &  El.  n.  s.  739;  Caldwell  w.  Fulton,  31  Penn.475; 
Griibb  V.  Bayard,  2  Wallace,  Jr.,  81 ;  Zinc  Co.  v.  Franklinite  Co.,  13  N.  J.  322, 
341,  the  case  of  a  mine  of  two  distinct  minerals.  Clement  v.  Youngman,  40 
Penn.  St.  344. 

2  Bradley  v.  Holdsworth,  3  M.  &  W.  422 ;  Bligh  v.  Brent,  2  Younge  &  C.  268  ; 
Ang.  &  Am.  Corp.  §  557,  655-8 ;  Mohawk,  &c.  R.  R.  v.  Clute,  4  Paige,  393  ;  ToU 
Bridge  v.  Osborn,  35  Conn.  7. 

3  Drybutter  v.  Bartholomew,  2  P.  Wms.  127. 

*  Wallis  V.  Cowles,  2  Conn.  567.  ^  prfce  v.  Price,  6  Dana,  107. 

6  Prov.  Law,  402 ;  Codman  v.  Winslow,  10  Mass.  146  ;  Mitchell  v.  Starbuck, 
Id.  6. 


CH.  I.]     NATURE    AND    CLASSIFICATION    OP    REAL   PROPERTY.         19 

a  tenant,  in  the  absence  of  any  special  contract  to  the  con- 
trary.^ But  in  New  Jersey  it  is  held  to  be  personal  property, 
and  not  to  pass  with  tlie  realty  as  an  incident,  or  part  of  it.^ 
The  law  of  New  Brunswick  coincides  with  that  of  New 
Jersey.  In  North  Carolina  a  tenant  for  years  may  claim  the 
manure  made  by  him  upon  a  farm  as  personal  property, 
and  remove  the  same  upon  leaving  the  premises.  But  if 
he  leave  it  upon  them,  he  loses  the  right  to  remove  it.^ 
In  other  States  it  has  been  held  to  depend  upon  the  circum- 
stances under  which  it  has  been  made.  Thus  where  a  team- 
ster owning  a  house  and  stable  sold  them  with  a  small  yard 
around  them,  it  was  held  not  to  pass  a  quantity  of  manure 
in  the  cellar  of  the  stable,  that  being  personal  estate.*  So  if 
the  manure  be  made  from  hay  purchased  and  brought  upon 
the  premises  by  a  tenant,  it  will  be  regarded  as  personal 
property.^  As  a  general  rule,  it  passes  as  an  incident  to  the 
soil,  and  forms  a  part  of  the  realty,  especially  if  it  be  upon 
the  ground  where  it  was  dropped.^  But  in  Vermont,  where 
the  owner  of  the  land  had  gathered  the  manure  upon  it  into 
piles  for  sale  and  sold  it  as  personalty,  and  then  sold  the 
land,  it  did  not  pass  the  manure  in  piles.''  So,  in  Massachu- 
setts, a  sale  of  manure  by  the  owner  of  the  farm  passes  a  title 
to  it  as  personal  property,  and  a  subsequent  conveyance  of 
the  farm  would  not  pass  the  manure  upon  it,  or  divest  the 
title  of  the  purchaser  to  the  same.^  The  rule  in  England 
seems  to  be,  so  far  different  in  the  case  of  a  tenant  for  years, 
that  the  way-going  tenant  may  claim  compensation  for  the 
same  by  the  custom  of  the  country.^ 

1  Daniels  v.  Pond,  21  Pick.  367  ;  Lewis  v.  Lyman,  22  Pick.  437  ;  Kittredge 
V.  Woods,  3  N.  H.  503 ;  Lassell  v.  Reed,  6  Greenl.  222  ;  Stone  v.  Proctor,  2  Chip. 
115;  Parsons  v.  Camp.  11  Conn.  525 ;  Fay  v.  Muzzy,  13  Gray,  53 ;  Witherby  v. 
Ellison,  19  Vt.  379;  Middlebrook  v.  Corwin,  15  Wend.  169;  Goodrich  v.  Jones, 
2  Hill,  142;  Sawyer  v.  Twiss,  6  Foster,  345;  Peny  v.  Carr,  44  N.  H.  120; 
Wadleigh  v.  Janvrin,  41  N.  H.  519. 

2  Ruckman  v.  Outwater,  4  Dutch.  581. 

3  Smithwich  v.  Elhson,  2  Ired.  326.  «  Proctor  v.  Gilson,  49  N.  H.  62. 
6  Carey  v.  Bishop,  48  N.  H.  146. 

6  Hill  r.  De  Rochmont,  48  N.  H.  88 ;  French  v.  Freeman,  43  Vt.  93. 
'  French  r.  Freeman,  sup. 

8  Strong  V.  Doyle,  110  Mass.  94. 

9  Roberts  v.  Barker,  1  Cromp.  &  M.  809. 


20  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

16.  There  is  a  class  of  chattels  which  in  England  are  known 
as  "  heirlooms,"  which  by  custom  descend  to  the  heir  with 
the  real  estate,  and  thereby  are  regarded  as  belonging  to  it. 
Among  them  are  articles  of  household  stuff,  furniture,  or  im- 
plements.i  But  they  do  not  seem  to  be  recognized  by  the 
law  of  this  country.  A  name  attached  to  an  hotel  by  a  tenant 
is  not  such  a  fixture  that  the  landlord,  on  his  leaving  it,  has 
an  exclusive  right  to  use  it  as  the  designation  of  that  hotel, 
although  the  name  of  an  hotel  may  be  a  trade-mark  in  which 
the  proprietor  has  a  valuable  interest.^  * 

17.'  There  are  interests  in  lands  which,  from  their  not  being 
inheritable,  are  regarded  as  chattels,  though  in  their  nature 
partaking  of  the  character  of  the  realty,  from  the  property 
itself  being  fixed  and  immovable,  such  as  estates  for  years, 
which  go  to  executors  or  administrators  upon  the  death  of 
the  tenant,  rather  than  his  heirs.  Nor  is  their  character 
affected  by  the  number  of  years  by  which  their  duration  is 
measured,  except  in  those  States  where  inheritability  is  at- 
tached by  statute  to  long  terms.^ 

18.  The  class  of  articles  which  may  assume  the  character 
of  realty  or  personalty,  according  to  the  circumstances  in 
which  they  are  placed  and  come  most  frequently  under  the 
consideration  of  the  courts,  is  what  are  called  Fixtures.  The 
word  is  used  here  in  its  technical  sense  as  "  something  sub- 
stantially and  permanently  affixed  to  the  soil,"  though  in  its 
nat?ure  removable.*     But  the  old  notion  of  physical  attach- 

1  Termes  ^fle  Ley,  "  Heirlooms  " ;  Jacobs'  Law  Diet.  "  Heirlooms  "  ;  2  Bl. 
Com.  227.  Some  writers  trace  the  original  of  "heirlooms  "  to  the  implements 
in  household  economy  in  which  cloth  was  woven,  and  hold  that  from  these  they 
were  extended  to  any  household  articles,  such  as  tables,  cupboards,  bedsteads, 
wainscot,  and  the  like,  which  by  custom  went  to  the  heir  of  the  owner  at  his 
decease,  with  the  house  in  which  it  had  been  used.  The  term,  however,  properly 
applies  only  to  such  things  as  cannot  be  removed  without  injury  to  the  freehold, 
except  where  other  articles  are  regarded  as  such  by  custom.  Cowel,  Interpret. 
"  Heir  Loom  "  ;  Co.  Lit.  18  b  ;  2  Black.  428  ;    Shep.  Touch.  432. 

2  Woodward  v.  Lazar,  21  Cal.  448. 

3  Post,  *310;  1  Atk.  Conv.  5;  1  Wood,  Conv.  xx. 

*  Per  Parke,  B.,  2  M.  &  W.  450  ;  Walker  v.  Sherman,  20  Wend.  656  ;  Bishop 
I'.  Elliott,  11  Exch.  113 ;  Broom's  Maxims,  295  et  seq.  The  law  of  fixtures,  as 
a  distinct  branch  of  study,  is  quite  modern.  The  word  "fixture"  is  said 
not  to  be  found  in  Viner  or  Bacon,  or  in  the  Termes  de  Ley.  It  occurs  in 
Comyn's  Digest,  but  only  in  the  addenda.      The  substance  of  the  law  of  fix- 


CH.  I.]      NATURE   AND   CLASSIFICATION   OF  REAL   PROPERTY.         21 

meat,  in  determining  whether  a  given  thing  is  a  fixture  or 
not,  is  by  some  courts  regarded  as  exploded.  Whether  it  is 
a  fixture  depends  upon  the  nature  and  character  of  the  act 
by  which  the  structure  is  put  in  its  place,  the  policy  of  the 
law  connected  with  its  purpose,  and  the  intent  of  those  con- 
cerned in  the  act.^  While  other  courts  still  hold  that  it  is 
essential,  to  constitute  a  fixture,  that  the  article  should  not 
only  be  annexed  to  the  freehold,  but  that  it  should  clearly 
appear  from  inspection  of  the  property  itself,  taking  into  con- 
sideration the  character  of  the  annexation,  the  nature  and 
adaptation  of  the  article  annexed,  the  uses  and  purposes  to 
which  that  part  of  the  building  is  appropriated  at  the  time 
the  annexation  is  made,  and  the  relations  of  the  party  mak- 
ing it  to  the  property  in  question,  that  a  permanent  accession 
to  the  freehold  was  intended  to  be  made  by  the  annexation 
of  the  article.^  If  two  adjacent  owners  of  land  build  a 
division  fence  between  them,  "  it  is  a  dedication  of  the 
materials  to  the  realty, "  and  neither  can  remove  it.  It 
would  pass  by  a  sale  of  the  land  as  much  as  the  soil  it- 
self.3 

18  a.  As  illustrative  of  whether  the  same  things  may  be 
fixtures  or  otherwise,  depending  upon  circumstances ;  if  one 
gets  out  fencing-stuff  upon  his  farm  to  be  used  elsewhere 
than  upon  the  farm  on  which  it  is  cut  and  is  lying,  and  then 
sell  the  farm,  it  would  not  pass  with  the  freehold.  Whereas, 
if  cut  to  be  used  upon  the  farm,  it  would  pass  with  it.  The 
same  would  be  true  of  timber,  and  of  stone  raised  from  a 
quarry,  and  severed  from  the  freehold.  But  if  there  be 
nothing  to  indicate  where  the  stone  is  to  be  used,  and  noth- 
ing is  said  by  the  grantor  or  grantee  when  the  land  is  con- 
veyed, the  stone  would  pass  with  the  land.  It  would  be 
otherwise  if  the  grantor  should  give  notice  of  the  purposes 
for  which  the  stone  has  been  qttarried  when  he  convej^s  the 
land.     Thus,  where  a  land-owner  quarried  and  raised  a  large 

tures,  however,  may  be  found  in  these  books  under  different  heads.  3  Alb.  Law 
Journ  407. 

1  Jleig's  Appeal,  62  Penn.  St.  33 ;  Quimby  v.  Manhattan  Co.,  9  C.  E.  Green,  260. 

2  Capen  v.  Peckham,  85  Conn.  94;  Voorhees  v.  McGinnis,  48  N.  Y.  282; 
Quimby  v.  Manhattan  Co.,  sup. 

2  Stoner  u.  Hunsicker,  47  Penn.  St.  514. 


22  LAW   OF  BEAL   PROPERTY.  [BOOK   I. 

stone  designed  for  a  tomb  outside  of  his  farm,  and  sold  his 
laud,  giving  the  purchaser  notice  of  the  purposes  of  the  same, 
it  was  held  that  it  remained  the  personal  property  of  the  ven- 
dor, though  he  suffered  it  to  remain  where  it  was  for  thirty- 
two  years,  and  he  might  maintain  trover  for  a  conversion 
thereof  by  the  owner  of  the  farm.^ 

19.  The  persons  between  whom  questions  ordinarily  arise 
in  relation  to  these  are :  1.  Vendor  and  Vendee,  including 
Mortgagor  and  Mortgagee.  2.  Heir  and  Executor.  3.  Land- 
lord and  Tenant.  4.  Executor  of  Tenant  for  Life,  and  Re^ 
versioner  or  Remainder-man. 

20.  In  respect  to  the  first,  little  need  be  added  to 
[*7]  what  has  *been  said  above.  If  the  owner  of  lands 
provides  anything  of  a  permanent  nature  fitted  for 
and  actually  applied  to  use  upon  the  premises  by  annexing 
the  same,  it  becomes  a  part  of  the  realty,  and  passes  to  the 
purchaser,  though  it  might  be  removed  without  injury  to  the 
premises.2  This  principle  was  applied  to  the  case  of  window 
blinds  and  double  windows  which  the  owner  of  a  house  had 
procured  for  it,  and  had  them  in  it  at  the  time  he  sold  it. 
The  blinds  had  never  been  attached  to  the  building,  but 
were  sitting  in  the  house  at  the  time  of  the  sale.  The 
double  windows  would  fit  into  the  existing  window  frames, 
and  had  been  used  one  winter  by  merely  setting  them  into 
the  frames  without  being  fastened  in  any  way,  and  were  not 
in  sight  when  the  sale  was  made.  It  was  held  that  they  had 
not  been  so  far  fitted  and  fastened  to  the  house  as  to  pass 
with  it  as  fixtures.^  And  this  doctrine  was  carried  so  far  in 
one  case,  that,  where  a  railroad  company,  having  laid  their 
rails  and  road  across  a  man's  land  and  erected  a  depot 
thereon,  without  having  taken  measures  to  take  the  land  by 
law  for  that  use,  proceeded  to  locate  their  road  over  the  same 
line,  it  was  held  that,  in  assessing  damages  to  the  land-ow^ner 
for  such  taking  of  his  land,  he  was  entitled  to  the  value  of 

1  Noble  V.  Sylvester,  42  Vt.  146. 

2  Farrar  v.  Staekpole,  6  Greenl.  157 ;  Walker  v.  Sherman,  20  Wend.  636 ; 
Teaff  V.  Hewett,  1  Ohio  St.  511 ;  Buckley  v.  Buckley,  11  Barb.  43,  2  Smith,  L. 
C,  5th  Am.  ed.,  252;  Woodman  v.  Pease,  17  N.  H.  284;  Voorhees  v.  McGinnis. 
48  N.  Y.  282. 

3  Peck  V.  Batchelder,  40  Vt.  233. 


CH.  I.]      NATURE   AND    CLASSIFICATION   OF   REAL   PROPERTY.         23 

the  road  and  depot,  to  be  paid  him  by  the  company  as  a  part 
of  his  freehold. 1 

21.  The  same  rule  applies  between  mortgagor  and  mortga- 
gee, whether  the  article  in  question  be  annexed  to  the  prem- 
ises before  or  after  making  the  mortgage.^  And  this  doctrine 
was  held  to  apply,  although  the  mortgagor  was  one  of  a  part- 
nership who  occupied  the  premises,  and  made  the  attach- 
ment of  the  fixture  to  the  premises.^  But  even  a  mortgagor 
may  make  temporary  erections  if  they  are  not  attached  to 
the  freehold,  and  may  remove  them  before  the  mortgage  is 
foreclosed,  if  he  does  not  depreciate  the  value  of  the  security 
as  it  existed  Avhen  the  mortgage  was  given.  In  this  case,  a 
partnership  placed  upon  the  land  of  one  of  the  partners  a 
temporary  building  upon  blocks,  and  in  no  otherwise  annexed 
to  the  realty.  It  was  held  not  to  be  bound  by  the  mortgage, 
as  it  would  have  been  if  annexed  to  the  soil.*  In  one  case 
the  court  held  a  steam-engine,  put  into  the  mortgaged  prem- 
ises by  the  mortgagor,  not  to  pass  under  the  mortgage,  from 
the  nature  of  the  property,  it  being  a  water-mill,  and  the  en- 
gine being  only  placed  there  in  a  dry  time  to  supply  power.^ 
And  in  Michigan  it  was  held  that  an  agreement  between  the 
mortgagor  of  premises,  with  one  whom  he  employed  to  erect 
fixtures  thereon,  that  he  should  have  security  for  the  same 
by  a  mortgage  of  such  fixtures  as  personal  property,  would 
give  to  such  mortgage  a  preference  over  a  mortgage  of  the 
realty  already  existing  when  such  fixtures  were  erected.^ 
But  if  the  owner  of  realty,  such,  for  example,  as  a  mill,  pro- 
cure heavy  machinery  which  is  designed  to  be  affixed  to  it 
and  to  be   used  with  it,  and  after  placing  it  therein   mort- 

1  Graham  v.  Connersville  R.  R.,  36  Ind.  463. 

2  Gardner  v.  Finley,  19  Barb.  317;  Walmsley  v.  Milne,  7  C.  B.  n.  s.  115; 
post,  ip.  *[>i'2 ;  Union  Bank  r.  Emerson,  15  Mass.  159;  Winslow  v.  Merchants 
Ins.  Co.,  4  Met.  306;  Roberts  v.  Dauphin  Bank,  19  Penn.  St.  74;  Robinson  v. 
Preswick,  3  Edw.  Ch.  246;  Wadleigh  v.  Janvrin,  41  N.  H.  514;  Burnside  v. 
Twitchell,  43  N.  H.  390;  Hoskin  v.  Woodward,  45  Penn.  St.  42;  Crane  v.  Brig- 
ham,  limiting  and  defining  the  right,  3  Stockt.  Ch.  30  ;  Richardson  v.  Copeland, 
6  Gray,  536 ;  Pierce  v.  George,  108  Mass.  78. 

3  Cullwick  V.  Swindell,  L.  R.,  3  Eq.  Cas.  249  ;  Ex  parte  Cotton,  2  Montag.  D. 
&  D.  725  ;  Lynde  v.  Rowe,  12  Allen,  100  ;  Kelly  v.  Austin,  46  111.  159. 

*  Kelly  V.  Austin,  46  111.  159.  5  Crane  v.  Brigham,  3  Stockt.  Ch.  30. 

6  Crlppen  v.  Morrison,  13  Mich.  35 ;  Jones  v.  Scott,  10  Kans.  33.  Contra, 
Pierce  v.  George,  108  Mass.  78,  82. 


24  LAW   OF  REAL   PROPERTY.  [BOOK  I. 

gages  the  realty,  it  will  embrace  and  carry  these  fixtures  as  a 
part  of  it,  although  he  may  have  mortgaged  the  same  as  per- 
sonalty, or  may  have  agreed  with  the  vendor  of  the  fixtures 
that  they  should  be  regarded  as  personalty,  and  that  he 
should  have  a  lien  thereon  for  his  pay,  unless  the  mortgagee 
of  the  realty  had  notice  of  this  agreement  when  taking  his 
mortgage.  If  he  had,  the  lien  of  the  vendor  would  still  be 
valid  and  effectual.^  So  if  the  fixtures  are  removed  by  the 
original  vendor  by  consent  of  the  mortgagee,  and  he  subse- 
quently assigns  his  mortgage,  it  would  not  pass  the  fixtures.^ 
And  where  the  owner  of  an  elevator  purchased  an  engine  and 
boiler  to  be  placed  therein,  and  gave  back  a  mortgage  thereof, 
in  which  it  was  stipulated  that  they  should  remain  person- 
alty until  paid  for,  it  was  held  that  one  holding  a  prior  mort- 
gage upon  the  realty  could  not  claim  these  as  against  the 
original  vendor.^ 

22.  Also  between  the  heir  and  executor  of  the  owner  of  the 
freehold,  unless  regulated  by  statute,  as  is  the  case  in  New  York.^ 

23.  Also  between  debtor  and  creditor,  where  the  latter 
levies  upon  the  land  of  the  former  for  debt.^ 

24.  Also  between  heir  or  vendee  of  husband  and  his 
widow  in  respect  to  the  premises  set  to  her  as  dower.^ 

25.  Among  the  articles  to  which  this  rule  has  been  held  to 
apply,  in  addition  to  those  above  enumerated,  have  been  rolls 
in  an  iron-mill,  though  lying  loose  in  the  mill ;  "*  steam-engine 
and  boiler ;  engines  and  frames  designed  and  adapted  to  be 
moved  and  used  by  such  engine  ;  ^  dj'e-kettle  set  in  brick  ;  ^  the 
main  mill-wheel  and  gearing  of  a  factory  necessary  to  operate 

1  Huntf.  Bay  State  Co.,  97  Mass.  282;  Pierce  v.  George,  108  Mass.  78,  82; 
Clary  v.  Owen,  15  Gray,  524;  Climie  v.  Wood,  L.  R.,  3  Exch.  257  ;  Quimby  v. 
Manhattan  Co.,  9  C.  E.  Green,  260. 

2  Voorhees  v.  McGinnis,  48  N.  Y.  236 ;  Bartliolomew  v.  Hamilton,  105  Mass. 
289.  3  Tift  V.  Horton,  53  N.  Y.  377. 

4  2  Kent,  Com.  8th  ed.  345,  and  note ;  House  v.  House,  10  Paige,  Ch.  158 ; 
Fay  V.  Muzze}',  13  Gray,  56  ;  Williams,  Pers.  Prop.  14. 

5  Farrar  v.  ChaufTetete,  5  Denio,  527 ;  Goddard  v.  Chase,  7  Mass.  432. 
fi  Powell  V.  Monson  Co.,  3  Mason,  459. 

^  Voorhies  v.  Freeman,  2  Watts  &  S.  116 ;   Hill  v.  Sewald,  53  Penn.  St.  274. 

8  Sparks  v.  State  Bank,  7  Blackf.  469  ;  Winslow  v.  Mercliants  Ins.  Co.,  4  Met. 
306;  Sands  v.  Pfiefer.  10  Cal.  258;  Walmsley  v.  Milne,  7  C.  B.  n.  s.  115;  Voor- 
hees ?;.  McGinnis,  48  N.  Y.  285;  Pierce  v.  George,  108  Mass.  82. 

8  Koble  V.  Bosworth,  19  Pick.  314;  Union  Bank  v.  Emerson,  15  Mass.  159. 


CH.  I.]      NATURE   AND   CLASSIFICATION   OF   REAL   PROPERTY.         25 

it;^  a  cotton-gin  fixed  in  its  place.^  A  trip-liammer  attached 
to  a  block  set  in  the  ground,  tlie  blower  of  a  forge,  a  force- 
pump  and  pipes  for  raising  water,  and  shafting  annexed  to 
the  freehold  and  adapted  to  be  used  with  it,  are  fixtures.  But 
a  steam-engine  and  boiler  set  upon  frames  and  portable,  a 
planing-machine  and  anvils  resting  on  the  ground  but  not 
fastened,  forge  tools  and  a  vice  annexed  by  screws  to  a  bench 
in  the  shop,  and  a  grind-stone  in  a  movable  frame,  are  chattels 
and  not  fixtures.  A  windlass  attached  to  a  butcher  shop  is  a 
fixture.^  So  marble  slabs  laid  upon  brackets  in  a  house,  but 
not  otherwise  fastened  to  the  wall,  are  not  fixtures  but  furni- 
ture, and  do  not  pass  from  vendor  to  vendee  of  the  realty. 
But  a  bell  hung  in  the  cupola  of  a  barn  so  as  to  be  rung,  is  a 
fixture,  and  will  pass  as  such  with  the  realty.*  So,  where  one 
having  a  mill  and  steam-engine,  with  works  to  be  carried  by 
it,  procured  and  placed  in  it  a  portable  grist-mill,  which  he 
fixed  firml}^  and  securely  in  it,  but  it  could  be  taken  out  with- 
out injury,  it  was  held  that  it  passed  as  a  part  of  the  realty 
upon  a  sale  of  the  latter,  as  it  had  been  annexed  with  an  in- 
tention of  its  being  a  permanency  in  carrying  on  the  business 
of  the  mill.^  And  wherever  trade  fixtures  are  placed  upon 
real  estate  by  license  of  the  owner  thereof,  and  this  is  known 
to  the  purchaser  of  such  estate  when  he  purchases,  they  will 
not  pass  with  the  realty  to  such  purchaser.^ 

26.  On  the  other  hand,  machines  and  the  like,  which 
may  be  *used  in  any  other  building  as  well  as  that  in  [*8] 
which  they  are  placed,  such  as  carding-machines  in  a 
factory,  are  ordinarily  deemed  to  be  personal  chattels,  though 
fastened  securely  to  the  freehold,  if  the  same  can  be  removed 
without  material  injury  to  the  freehold.''  It  is  stated  as  a  rule 
of  law,  in  respect  to  mills  and  manufactories,  that,  in  the  ab- 

1  Powell  V.  Monson  Co.,  3  Mason,  459;   Buckley  v.  Buckley,  11  Barb.  43. 

2  Bratton  v.  Clawson,  2  Strobh.  478;    Richardson  v.  Borden,  42  Miss.  71; 
Fairis  v.  Walker,  1  Bailey,  540. 

3  McLaughlin  v.  Nash,  14  Allen,  138 ;  Capen  v  Peckham,  35  Conn.  93. 

*  Weston  V.  Weston,  102  Mass.  514,  519;  Alvord  Co.  v.  Gleason,  36  Conn.  86. 
5  Potter  V.  Cromwell,  40  N.  Y.  287-296. 
«  Wilgus  V.  Gittings,  21  Iowa,  177. 

7  Cresson  v.   Stout,   17   Johns.  116;    Gale  v.  Ward,  14  Mass.  352;   Swift  v. 
Thompson,  9  Conn.  63 ;  Vanderpool  v.  Van  Allen,  10  Barb.  157. 


26  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

sence  of  agreement  or  custom,  an3'thing  that  can  be  removed 
without  essential  injury  to  itself  or  the  freehold,  is  a  chattel 
between  a  purchaser  of  the  realty  and  a  mortgagee  of  the 
personalty.! 

26  a.  The  readiest  way,  perhaps,  of  illustrating  several  of 
the  preceding  propositions  is  by  referring  to  some  of  the  more 
recent  cases,  in  addition  to  those  already  cited,  in  Avliich  these 
principles  have  been  applied.  It  may  be  stated,  in  the  first 
place,  that  whether  a  thing  which  may  be  a  fixture  becomes  a 
part  of  the  realty  by  annexing  it,  depends,  as  a  general  propo- 
sition, upon  the  intention  with  wdiich  it  is  done.^  Between 
vendor  and  vendee,  or  mortgagor  and  mortgagee,  it  has  been 
held  that  gas-fixtures,  including  a  gasometer  and  apparatus 
for  generating  gas,  would  pass  with  the  house  in  which  they 
were  in  use,  but  not  between  tenant  and  landlord  if  put  in  by 
the  tenant.^  Steam  boilers  and  engines  used  in  a  marble  mill, 
and  supplying  the  power  by  which  it  is  carried,  pass  as  a  part 
of  the  realty  by  a  mortgage  of  the  estate  by  the  owner.  But 
the  saw-frames  in  such  mill  were  held  to  be  personal  chattels.* 
If  a  steam-engine,  for  instance,  be  placed  in  a  shop  or  factory  to 
create  the  moving  power  by  which  it  is  carried  on,  the  engine 
and  shafting  necessary  to  communicate  the  motive  power  to 
the  machinery  would  be  as  much  a  part  of  the  realty  as  a 
water-wheel,  and  would  pass  with  the  realty  by  deed  or  moiL- 
gage.^  The  shelves,  drawers,  and  counter  tables  fitted  in  a 
store,  pass  with  the  store  as  realty.^  An  ice-chest  used  in  a 
tavern  is  not  a  fixture,  although  so  large  in  its  dimensions  as 
to  render  it  necessary  to  take  it  in  pieces  to  remove  it  from  the 
house.  It  would  be  of  the  nature  of  a  bedstead  or  book-case 
in  that  respect.'^  But  a  stone  sink,  set  in  a  frame  and  used  for 
domestic  purposes,  and  placed  there  by  the  owner  of  the  prem- 

1  Wade  V.  Johnson,  25  Ga.  331.  See  more  fully  on  this  subject,  Walker  v. 
Sherman,  20  Wend,  636-657 ;  Walmsley  v.  Milne,  sup. 

2  Hill  V.  Sewald,  53  Penn.  St.  274;  Hill  v.  Wentworth,  28  Vt.  436  ;  Voorhees 
V.  McGinnis,  48  N.  Y.  283. 

3  Hays  V.  Doane,  3  Stockt.  96. 

*  Sweetzer  v.  Jones,  35  Vt.  317  ;  Fullam  v.  Stearns,  30  Vt.  443. 

5  Hill  V.  Wentworth,  28  Vt.  428;  Harris  v.  Haynes,  34  Vt.  220;  Sweetzer 
V.  Jones,  sup, ;  Richardson  v.  Copeland,  6  Gray,  536 ;  Climie  v.  Wood,  L.  R., 
8  Exch.  257. 

6  Tabor  v.  Robinson,  36  Barb.  483.  ^  Park  v.  Baker,  7  Allen,  78. 


I 


CH.  I.]      NATURE   AND    CLASSIFICATION   OP  EEAL   PROPERTY.         27 

ises,  is  a  part  of  the  realty  and  goes  to  the  heir.  But  if  it  is 
put  iu  by  a  tenant,  it  would  belong  to  him,  and  might  be  re- 
moved by  him  during  the  term.^  A  furnace  for  warming  a 
house,  set  in  the  cellar,  together  with  the  stove-pipe  belonging 
to  the  same,  are  parts  of  the  realty .^  And  things  which  may 
be  fixtures  often  become  so,  or  otherwise,  from  the  circum- 
stance that  they  have  been  actually  fitted  for  and  applied  to 
the  realty.  Thus,  a  stone  procured  by  the  owner  of  a  house 
for  a  door-step,  and  brought  upon  the  premises,  but  never 
actually  applied  to  use,  was  held  to  be  a  chattel  not  passing 
with  the  realty.^  So  rolls  procured  and  intended  for  an  iron- 
mill,  and  brought  to  it,  do  not  become  a  part  of  the  realty 
until  fitted  and  actually  applied  to  use.*  But  where  the 
owner  of  a  farm,  on  which  stood  a  cider-mill  and  a  barn,  and 
parts  of  the  mill  were  taken  out  and  laid  up  for  safety,  and 
the  barn  being  in  the  process  of  repair,  the  stanchions  and 
tie-chains  for  the  cattle  were  taken  out,  and,  with  the  door- 
hinges,  were  lying  loose  upon  the  premises,  conveyed  the 
farm,  it  was  held  to  pass  as  parts  of  the  realty  all  these  arti- 
cles, though  at  the  time  thus  separated  from  it.^  So  the  saws, 
crank,  and  mill-gear  of  a  saw-mill  form  a  part  of  the  freehold 
and  inheritance.^ 

27.  The  rule  of  law  as  to  removing  fixtures  is  most  liberal 
when  applied  between  tenant  and  landlord."  And,  as  a  general 
proposition,  whatever  a  tenant  aflBxes  to  leased  premises  may 
be  removed  by  him  during  the  term,  provided  the  same  can  be 
done  without  a  material  injury  to  the  freehold.  Nor  will  a 
conveyance  of  the  premises  by  the  landlord  interfere  with  the 
rights  of  the  tenant  in  respect  to  such  fixtures.^ 

28.  And  although  some  of  the  English  cases  discriminate  in 
this  respect  between  structures  for  the  purposes  of  trade  and 

1  Bainway  v.  Cobb,  99  Mass.  458,  459. 

2  Stockwell  V.  Campbell,  39  Conn.  -362. 
8  Woodman  v.  Pease,  17  N.  H.  '282. 

*  Johnson  v.  Mehaifey,  43  Penn.  St.  308.  Ex  parte  Astbury,  in  re  Richards,  L. 
R.,  4  Ch,  App.  630.     See  18  Am.  L.  Reg.  143-146. 

5  Wadleigli  v.  Janvrin,  41  N.  H.  503.     6  Linton  v.  Wilson,  1  Kerr,  N.  B.  223. 

T  Elwes  V.  Maw,  3  East,  38 ;  Van  Ness  v.  Packard,  2  Pet.  137 ;  2  Smith,  L.  C, 
5th  Am.  ed.,  240;  Crane  v.  Brigham,  3  Stockt.  Ch.  30. 

8  Raymond  v.  White,  7  Cowen,  319;  Davis  v.  Buffum,  51  Maine,  162,  163; 
Fuller  V.  Tabor,  39  Maine,  519. 


28  LAW  OF  REAL  PROPERTY.  [BOOK  L 

manufacture  and  tliose  of  agriculture,  the  American  courts  do 
not  recognize  the  distinction  as  applicable  here.^  A  barn, 
however,  standing  upon  stone  piers  upon  the  ground,  was  held 
to  form  a  part  of  the  realty .^ 

29.  Among  what  are  considered  as  trade  fixtures  are,  vats 
and  coppers  of  a  soap-boiler,^  green  and  hot  houses  of  nursery- 
men or  gardeners,*  fire-engines  set  up  to  work  a  colliery,^  and 
salt-kettles  in  salt-works.  In  the  case  of  a  lease  of  an  oyster 
saloon,  it  was  held  that  a  glass  case,  a  case  of  drawers,  a 
mirror,  and  gas-fixtures  fastened  to  the  wall  by  the  tenant, 
were  furniture  rather  than  fixtures,  and  if  the  landlord  close 
the  saloon  and  refuse  to  let  the  tenant  remove  them,  he  is 
liable  in  trover  for  their  conversion.  But  it  would  be  other- 
wise with  a  long  counter  secured  to  the  floor.  This  would 
be  a  fixture  which  the  tenant  may  remove  during  the  term, 
but  not  afterwards.^  A  boiler  and  steam-engine,  placed  by  a 
tenant  in  leased  premises,  were  held  to  be  fixtures,  but  liable 
to  be  removed  by  him  or  to  be  attached  as  the  personal  prop- 
erty of  the  tenant.'^ 

30.  But  if  the  tenant  suffer  the  fixture  erected  by  him  to 
remain  annexed  to  the  premises  after  the  expiration  of  his 
term,  it  becomes  at  once  a  part  of  the  realty,  and  he  may  not 
afterwards  sever  it.^     And  this  rule  applies  in  the  case  of 

1  2  Smith, L.  C,  5th  Am.  ed.,  240;  Van  Ness  v.  Packard,  sup.;  Hohnes  v. 
Tremper,  20  Johns.  29;  Whiting  v.  Brastow,  4  Pick.  310;  Wing  v.  Gray,  36 
Vt.  267,  a  case  of  hop-poles. 

-  Landon  v.  Pratt,  34  Conn.  517.  »  Poole's  Case,  1  Salk.  368,  and  note. 

4  Panton  v.  Robart,  2  East,  88. 

5  Lawton  v.  Lawton,  3  Atk.  13  ;  Ford  v.  Cobb,  20  N.  Y.  344.  In  the  case  of 
Van  Ness  v.  Packard,  ubi  sup.,  a  tenant  erected  on  the  leased  premises  a  wooden 
dwelling-house,  two  stories  high,  with  a  slied  of  one  story,  having  a  cellar  of 
stone  or  brick  foundation,  and  a  brick  chimney  for  his  business  as  a  dairyman, 
and  the  residence  of  his  family  and  servants  emploj'ed  by  him,  and  it  was  held 
he  might  remove  it.  In  Iowa  the  court  divided  upon  the  question  whether  a 
store  erected  by  a  lessee  under  a  parol  agreement  by  the  lessor,  who  was  mort- 
gagor of  the  premises,  was  a  trade  fixture.  Cowden  v.  St.  John,  16  Iowa,  590. 
The  doctrine  of  the  text  was  applied  to  an  engine-house  erected  upon  a  stone 
foundation,  in  White's  Appeal,  10  Penn.  St.  252.  See  also  Hill  v.  Sewald,  53 
Penn.  St.  274. 

6  Guthrie  v.  Jones,  108  Mass.  193,  196.        ^  Hey  v.  Bruner,  61  Penn.  St.  90. 

8  White  V.  Arndt,  1  Whart.  91 ;  Gaffield  v.  Hapgood,  17  Pick.  198 ;  Lyde  v. 
Russell,  1  B.  &  Ad.  394 ;  Lee  v.  Risdon,  7  Taunt.  188 ;  2  Smith,  L.  C,  5th  Am. 
ed.,  240 ;   Amos  &  Per.  Fixtures,  87 ;   Davis  v.  Moss,  38  Penn.  346,  353 ;  post, 


CH.  I.]       NATURE    AND    CLASSIFICATION    OF   REAL    PROPERTY.        29 

nursery-trees  planted  by  the  tenant.^  So,  where  the  tenant 
erected  a  building  upon  the  premises,  which  was  fastened  by 
iron  bolts  to  rocks  in  the  ground,  and  had  a  machine  weigh- 
ing six  tons  placed  upon  a  stone-and-mortar  foundation  in  the 
cellar,  and  extending  up  into  the  second  story,  it  was  held 
that  by  abandoning  the  premises  the  tenant  ceased  to  have  a 
right  to  remove  these  as  fixtures.^  It  makes  no  difference  as 
to  the  right  of  the  tenant  to  remove  fixtures  after  the  termi- 
nation of  his  lease,  whether  it  determines  by  effluxion  of  time 
or  by  re-entry  for  forfeiture.^  Where  a  lessee  for  years  erected 
buildings  upon  the  premises,  and  at  the  expiration  of  his 
term  took  a  new  lease  of  the  premises  for  years,  but  nothing 
was  said  of  the  buildings,  it  was  held  to  be  an  abandonment 
of  his  right  to  remove  them,  and  that  they  became  a  part  of 
the  freehold,  inasmuch  as  the  new  lease  carried  the  buildings 
and  fixtures,  and  the  lessee,  accepting  the  lease,  was  estopped 
to  claim  them  as  his  own.*  Nor  will  equity  interpose  in  favor 
of  a  tenant,  on  the  ground  that  he  has  made  exjDeiisive  im- 
provements on  the  estate,  and  secure  to  him  the  right  to 
enjoy  them  after  the  expiration  of  the  term.^  But  where  the 
tenant  was  prevented  from  removing  buildings  from  the 
premises  by  injunction  from  the  court,  he  was  held  entitled 
to  a  reasonable  time  in  which  to  remove  them,  after  the  in- 
junction was  dissolved.^ 

30  a.  Questions  of  considerable  difficulty  have  arisen  as  to 
the  time  within  which  a  tenant  may  remove  fixtures  which  he 
has  annexed  to  household  premises.  Thus,  where  a  tenant  at 
sufferance  held  over,  after  the  expiration  of  his  term,  it  was 
held  that  he  could  not  remove  fixtures  after  his  landlord  had 
actually  entered  for  the  purpose  of  determining  the  tenancy.'^ 

*114.  But  see  Holmes  v.  Tremper,  20  Jolins.  29.  And  this  was  held  in  the  case 
of  platform  scales  fixed  in  the  ground  adjoining  a  leased  building,  and  extend- 
ing into  the  same.     Bhss  v.  Whitney,  9  Allen,  114. 

1  Brooks  V.  Galster,  51  Barb.  196.  2  Talbot  v.  Whipple,  14  Allen,  181. 

3  Pugh  V.  Arton,  L.  R.,  8  Eq.  Cas.  626.     *  Loughran  v.  Ross,  45  N.  Y.  792-5. 

6  Corning  v.  Troy  Iron  Co.,  40  N.  Y.  219. 

6  Goodman  v.  Hannibal,  &c.  R.  R.,  45  Mo.  33. 

^  Leader  v.  Homewood,  5  C.  B.  n.  s.  546  ;  Weston  v.  Woodcock,  7  M.  &  W. 
14  ;  I'enton  v.  Robart,  2  East,  88  ;  Haflick  v.  Stober,  11  Ohio  St.  482;  4  C.  B. 
N.  s.  135,  Am.  ed  ,  note. 


80  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

In  another  case  the  lessee  was,  by  his  lease;  to  have  a  right  at 
the  expiration  of  his  term  to  take  away  certain  fixtures,  and 
if  he  became  bankrupt  the  lessor  was  at  liberty  to  enter  as  for 
a  forfeiture.  He  became  bankrupt,  and  the  lessor  having  en- 
tered, claimed  the  fixtures.  But  it  was  held  that  the  assignee 
had  a  reasonable  time  after  the  determination  of  the  lease  by 
forfeiture,  or  its  expiration,  in  which  to  remove  them.^  If  a 
tenant  who  has  erected  fixtures  neglect  to  remove  them  with- 
in his  terra,  or  within  a  reasonable  time  after  it  is  determined 
otherwise  than  by  effluxion  of  time,  he  forfeits  all  right  to  them, 
as  was  the  case  where  he  neo^lected  to  remove  a  buildinGf  for  the 
space  of  six  weeks.^  And  where  a  lessee  of  premises  for  an 
indefinite  period  erected  an  ice-house  thereon,  and  the  lessor 
determined  the  lease  when  the  tenant  had  a  large  quantity  of 
ice  in  the  house,  and  the  tenant  sold  this  as  soon  and  as  fast  as  he 
could,  taking  nearly  two  months,  and  then  removed  the  house 
which  was  set  upon  blocks,  it  was  held  to  be  within  a  reason- 
able time,  and  that  he  had  a  right  to  remove  it.^  And  in 
a  later  case  it  was  held  that  it  did  not  lie  in  the  power  of  a 
tenant,  after  having  annexed  fixtures  to  the  premises  and  then 
mortgaging  them,  to  defeat  the  title  of  his  mortgagee  b}'  sur- 
rendering possession  of  the  premises  to  his  lessor,  and  his 
mortgagee,  after  such  surrender,  might  enter  and  remove 
them.*  It  may  be  further  remarked,  that  the  mere  annexing 
of  an  article  of  the  character  of  a  fixture  to  the  freehold  of 
another  does  not  necessarily  make  it  the  property  of  the  lat- 
ter.    If  done  by  his  consent,  the  owner  may  remove  it  at  any 

time.^ 
[*9]         *  31.  What  has  been  said  as  to  trade  fixtures,  &c., 

applies  also  to  those  for  ornament  and  convenience, 
such  as  marble  chimney-pieces,  grates,  stoves,  bells  and  their 
hangincjs,  and  the  like.^ 

32.  If  fixtures  are  removed  from  the  freehold  to  which  they 

1  Stansfieia  v.  Portsmouth,  4  C.  B.  120.  2  Burk  v.  HoUis,  98  Mass.  56. 

'  Antoni  v.  Belknap,  102  Mass.  200. 

*  Loan,  &c.  Co.  v.  Drake,  6  C.  B.  n.  s.  798,  and  note  to  s.  c.  Am.  ed.  p.  811 ; 
Co.  Lit.  3.38  b. 

6  Wood  V.  Hewett,  8  Q.  B.  913. 

6  3  Atk.  15 ;  Grymes  v.  Boweren,  6  Bing.  437 ;  2  Smith,  L.  C,  5th  Am.  ed., 
241;  Mott  V.  Palmer,  1  Comst.  570;  Lawton  v.  Salmon,  1  H.  Black.  260,  note. 


CH.  I.]       NATURE   AND    CLASSIFICATION    OF   REAL   PROPERTY.  .      31 

have  been  annexed  by  their  owner,  they  at  once  resume  their 
character  of  simple  chattels.^ 

33.  Pews  in  churches  are,  in  some  States,  declared  by  stat- 
ute to  be  real,  in  others  personal  estate.  In  the  absence  of 
such  statute  they  partake  of  the  nature  of  realty,  although 
the  ownership  is  that  of  an  exclusive  easement  for  special  pur- 
poses, since  the  general  property  in  the  house  usually  belongs 
to  the  parish  or  corporation  that  erected  it.^  Of  the  same 
character  is  the  right  of  burial  in  a  public  burying-ground. 
It  is  not  a  property  in  the  soil,  nor  to  compensation  for  the 
same,  if,  upon  the  ground  having  ceased  to  be  used  for  burial 
purposes,  the  friends  of  the  persons  buried  therein  are  re- 
quired to  remove  the  remains.^ 

34.  It  may  be  remembered  that  in  equity  money  has  some- 
times the  incidents  and  attributes  of  real  estate,  though  it  is 
unnecessary,  for  the  purposes  of  this  work,  to  do  more  than 
refer  to  the  cases  cited  below  to  illustrate  and  explain  the 
proposition.^  In  the  first  of  these  there  was  a  devise  that  the 
land  of  a  testator  should  be  sold  and  the  money  paid  over  to 
an  alien,  and  effect  was  given  to  the  devise,  although  an  alien 
could  not  take  real  estate.  In  the  second,  money,  directed  to 
be  laid  out  in  land,  was  treated  as  land,  and  land  directed  to 
be  sold,  as  money ;  and  in  the  last,  curtesy  was  allowed  to  a 
husband  out  of  money,  the  proceeds  of  his  wife's  land  which 
had  been  sold. 

34  a.  Equity  treats  that  as  done  which  is  agreed  to  be 
done.  So  that  money  which,  according  to  a  will  or  agree- 
ment, is  to  be  invested  in  land,  is  regarded,  in  equity,  as  real 
estate,  and  land  which  is  to  be  converted  into  money  is  re- 
garded as  money  accordingly.^     And  in  Massachusetts,  the 

1  Heaton  v.  Findley,  12  Penn.  St.  304.  What  has  been  said  ahove  of  fixtures, 
is  rather  by  way  of  example  than  as  a  summary  of  the  law  on  the  subject. 

2  Daniel  v.  Wood,  1  Pick.  102;  Trustees  v.  Bigelow,  16  Wend.  28;  Cox  v. 
Baker,  17  Mass.  438;  Jackson  v.  Rounseville,  5  Met.  127  ;  Church  v.  Wells,  24 
Penn.  St.  249. 

3  Kincaid's  Appeal,  66  Penn.  St.  411 ;  Windt  v.  German  R.  Church,  4  Sandf. 
Ch.  471 ;  Sohier  v.  Trinity  Cliurch,  109  Mass.  21. 

*  Craig  V.  Leslie,  3  Wheat.  677 ;  Fletcher  v.  Ashburner,  1  Bro.  C.  C.  497  ; 
Foreman  v.  Foreman,  7  Barb.  215  ;  March  v.  Barrier,  6  Ired.  Eq.  624  ;  Houghton 
V.  Hapgood,  13  Pick.  164. 

6  Seymour  v.  Freer,  8  Wall.  214. 


32  LAW    OF   REAL    PROPERTY.  [BOOK   I. 

courts  treat  a  sum  of  money  as  real  estate  under  the  follow- 
ing circumstances,  viz. :  One  having  mortgaged  an  estate,  an 
action  was  commenced  against  him  by  a  third  party  to  recover 
the  seisin  of  the  land.  The  demandant  recovered  judgment, 
but  was  required  to  pay  a  certain  sum  of  money  into  court, 
for  betterments  made  upon  the  estate  by  the  tenant.  It  was 
held  that  the  mortgagee  was  entitled  to  this  money,  under 
his  mortgage  of  the  real  estate.^ 

35.  It  has  sometimes  been  attempted  to  define,  authori- 
tatively, what  is  meant  by  the  term  "  land,"  or  "real  estate." 
Thus,  in  the  Gen.  Statutes  of  Massachusetts,  "  Land,"  and 
"  Real  Estate,"  are  said  to  "  include  lands,  tenements,  and 
hereditaments,  and  all  rights  thereto  and  interests  therein." 
But  as  all  these  statutes  refer  to  the  common  law  for  the  defi- 
nition of  their  own  terms,  it  has  not  seemed  expedient  to 
occupy  any  more  space  in  citing  them  in  this  connection.^ 

36.  In  speaking  of  real  estate,  the  ordinary  terms  made  use 
of  are,  lands,  tenements,  and  hereditaments  ;  the  first  implying 

something  that  is  of  a  permanent,  substantial  nature, 
[*10]   such  *as  the  soil  itself,  houses,  trees,  and  the  like  ;  the 

second,  tenements,  including  anything  of  which  tenure 
or  a  holding  may  be  predicated,  if  of  a  permanent  nature, 
including,  under  the  English  law,  many  things  besides  lands, 
such  as  franchises,  rights  of  common,  rents,  and  the  like  ;  the 
third,  hereditaments,  being  of  a  broader  signification,  and 
including  anything  which  may  by  law  be  inherited.^  Under 
the  latter  w^ere  embraced,  among  other  things,  "  heirlooms," 
which  are  mentioned  above. ^ 

37.  This  broader  term,  hereditaments,  is  itself  divided  into 
two  classes,  namely,  corporeal  and  incorporeal.  The  former 
include,  as  the  term  implies,  what  is  of  a  substantial,  tangible 
nature.^  The  latter  is  defined  to  be  "  a  right  issuing  out  of  a 
thing  corporate  (whether  real  or  personal),  or  concerning  or 
annexed  to  or  exercisible  within  the  same."  ^     Thus,  one  may 

1  Stark  V.  Coffin,  105  Mass.  332.  2  Qen.  St.  c.  8,  §  7,  pi.  10 

3  2  Bl.  Com.  16 ;  Co.  Lit.  20 ;  1  Prest.  Est.  12,  13.  *  Jbid. 

5  2  Bl.  Com.  17. 

6  2  Bl.  Com.  20;  Co.  Lit.  20;  Hays  v.  Kichardson,  1  Gill  &  J.  378;  Washb., 
Easements,  10. 


CH.  I.]       NATURE   AND    CLASSIFICATION  OF   REAL   PROPERTY.        33 

grant  the  future  accretions  or  increments  of  what  he  owns  at 
the  time  he  makes  such  grant,  such  as  crops  of  a  tenant  which 
will  be  growing  at  tlie  end  of  his  term,  or  the  fruits  to  be 
grown  upon  land  which  he  owns,  so  he  may  mortgage  the 
same.^ 

38.  And  the  different  modes  of  creating  or  possessing  these 
gave  rise  to  another  mode  of  distinguishing  them,  namely, 
such  as  lie  "in  livery,'''  and  such  as  lie  "in  grants  The 
early  mode  of  transferring  lands  from  one  to  another  was  by 
putting  the  purchaser  in  actual  possession  by  entering  upon 
the  land,  or  some  equivalent  act,  which  was  called  livery  of 
seisin  —  no  deed  being  necessary,  in  such  case,  to  pass  the 
title  to  the  purchaser.^  But  as  a  sale  or  conveyance  of  an 
incorporeal  thing  could  not  be  accompanied  by  any  such  overt 
act  of  possession,  it  was  effected  b}^  means  of  a  deed  from  the 
vendor  to  the  purchaser,  evidencing  the  fact  of  his  having, 
granted  the  same.  This  was  called  a  grant,  as  distinguished 
from  livery  of  seisin.  Consequently,  corporeal  hereditaments 
are  said  to  "  lie  in  livery,"  incorporeal,  "  in  grant."  ^ 

39.  At  the  common  law  the  convej^ance  of  a  corporeal  here- 
ditament was  technically  a  feoffment,  that  of  an  incorporeal 
one  a  grants  But  this  distinction  in  England  is  prac- 
tically done  *  away  by  the  act  8  and  9  Vict.  c.  106,  [*11] 
§  2,  whereby  all  corporeal  hereditaments,  so  far  as  re- 
gards the  conveyance  of  the  immediate  freehold  thereof,  are 
deemed  to  lie  in  grant  as  well  as  in  livery.^ 

40.  Among  the  classes  of  property  which  come  under  the 
head  of  incorporeal  hereditaments,  and  at  common  law  lay  in 
grant,  may  be  mentioned  remainders  and  reversions  dependent 
upon  an  intermediate  freehold  estate,^  which  will  be  treated 
hereafter ;  and  easements,  such  as  a  right  of  way,  or  i:)assage 
of  water  through  another's  land,'^  or  of  light,  and  the  like.^ 

1  Phil.  Wil.  &  Bait.  R.  R.  v.  Woelper,  64  Penn.  St.  371 ;  Grantham  v.  Haw- 
ley,  Hob.  132. 

2  Deeds,  as  a  mode  of  conveying  corporeal  hereditaments,  were  first  required 
by  the  Statute  of  Frauds  in  the  time  of  diaries  II.     1  Atk.  Conv.  399. 

3  1  Prest.  Est.  13,  14;  Wms.  Real  Prop.  195. 

i  1  Law  Mag.  279.  5  Wms.  Real  Prop.  146. 

6  1  Law  Mag.  274,  275  ;  Doe  v.  Were,  7  B.  &  C.  248;  Wms.  Real  Prop.  197. 
^  1  Law  Mag.  276,  277  ;  Hewlins  v.  Shippam,  5  B.  &  C.  221. 
8  Cross  V.  Lewis,  2  B.  &  C.  686. 
VOL.   I.  8 


84  LAW   OP   REAL   PROPERTY.  [BOOK   T. 

41.  If  the  nature  of  the  interest,  ownership,  or  estate  which 
may  be  had  in  real  property,  as  above  described,  is  considered, 
it  will  be  found  that  it  is  divided  into  vested  and  contingent, 
executory  and  executed,  according  as  it  is  absolute  or  uncer- 
tain, or  the  subject  of  present  or  future  possession  and  enjoy- 
ment. Without  undertaking  to  discriminate  nicely,  as  some 
writers  have  done,  as  to  the  precise  meaning  of  these  terms  in 
all  their  relations,  it  will  be  sufficient,  in  this  stage  of  the 
work,  to  give  their  more  usual  and  generally  received  sense. 
Thus,  an  estate  is  vested  when  there  is  an  immediate,  fixed 
right  of  present  or  future  enjoyment.  An  estate  is  contingent 
when  the  right  to  its  enjoyment  is  to  accrue  on  an  event 
which  is  dubious  and  uncertain.^  Executed,  applied  to  estates, 
seems  to  be  used  as  substantially  synonymous  with  vested, 
while  executory,  though  it  relates  to  the  future  enjoyment  of 
the  property,  is  not  necessarily  contingent.  A  contingent 
interest,  as  above  defined,  would  be  executory.  So  might  a 
vested  one  be,  and  would  be,  if  future  in  its  enjoyment,  so  far 
as  relates  to  the  possession.^  Though  an  executory  interest 
may  be  taken  to  intend  a  future  estate  which  is  in  its  nature 
indestructible,  like  the  future  interest  in  an  executory  devise 

of  lands  under  a  last  will.^ 
pi2]  *42.  There  is  also  another  familiar  classification  of  es- 
tates into  legal  and  equitable,  whereby  it  is  intended  to 
describe  such  as  derive  their  origin  from  and  are  governed  by 
the  rules  of  the  common  law,  and  those  created  and  governed 
by  a  system  of  rules  devised  and  adopted  by  courts  of  chan- 
cery, which  will  be  hereafter  explained.  It  is  the  former  of 
these,  however,  to  which  this  work  is  to  be  understood  chiefly 
to  relate. 

43.  In  view  of  a  work  to  which  this  chaj)ter  may  be  taken 
as  introductory,  the  language  of  Chief  Justice  Gibson  may 
with  propriety  be  adopted.  "  The  system  of  estates  at  the 
common  law  is  a  complicated  and  an  artificial  one,  but  still 
it  is  a  system  complete  in  all  its  parts,  and  consistent  with 
technical  reason."  * 

1  Fearne,  Cont.  Rem.  2;  1  Prest.  Est.  65 ;  lb.  Gl. 

2  2  Bl.  Cora.  163 ;  1  Prest.  Est.  88 ;  lb.  62-64 ;  Hoff.  Leg.  Stud.  251 ;  2  Prest. 
Abs.  118. 

8  Wras.  Real  Prop.  241.  *  Evans  v.  Evans,  9  Penn.  St.  191. 


CH.  II.] 


FEUDAL  TENURES,   SEISIN,   ETC. 


35 


CHAPTER  11. 


FEUDAL  TENURES,  SEISIN,  ETC. 


1.  Introductory. 

2-4-  English  law,  how  far  applicable  here. 

5.  Origin  of  feudal  law. 

6.  Introduction  of  feuds  into  England. 

7.  Saxon  laws  as  to  lands. 

8.  Saxon  tenures  referred  to  in  colonial  charters. 

9.  Allodial  lands  changed  to  feuds. 

10.  Feudal  system  in  Normandy. 

11.  Theory  of  feuds. 

12.  Investiture  of  feuds. 

13-15.  Feudal  services.    Fealty.    Homage. 

16,  17.  Proper  and  improper  feuds. 

18.  Feudal  obligation  of  the  lord. 

19.  Feudal  condition  of  England  after  the  Conquest. 

20.  Change  of  allodial  lands  into  feuds. 
21,  22.  Tenures  defined. 

23-25.  Manors,  how  constituted  and  divided. 

26-83.  Feudal  services  and  fruits  of  tenure. 

34.  Tenure  in  capite. 

35,  36.  Service  free  and  base,  certain  and  uncertain. 

37-39.  Military  service.     Free  and  common  socage. 

40,41.  Villeins  and  villeinage.     Copyhold. 

42,  43.  Free  and  common  socage  the  tenure  of  English  lands. 

44-49.  Alienation  of  feuds.     Attornment  —  use  of  "  heirs  "  in  grants. 

50.  Law  of  this  country  as  to  "  heirs  "  in  deeds,  &c. 

61-54.  Of  freehold  estates,  how  created. 

55.  Creation  of  new  manors  abolished. 

56-59.  Subinfeudation,  how  introduced  and  applied. 

60-62.  Alienation  of  lands  under  Magna  Charta  and  Quia  Emptores. 

63.  Devises  of  lands,  when  allowed. 

64  68.  Investiture  and  delivery  of  seisin,  how  made. 

69.  Feoffment. 

70-72.  Seisin.     Its  theoretical  importance,  how  acquired. 

*73-82.  Seisin  in  fact  and  in  law,  what  and  how  acquired.  [*]4] 

83,  84.  Seisin  by  statute  of  uses,  and  delivery  and  recording  of  deeds. 

85-95.  Seisin  of  reversions  and  remainders,  how  made. 

96.  One  disseised  cannot  convey. 

97.  Seisin  cannot  be  in  abeyance. 

98.  How  far  tenure  is  in  force  in  this  country, 


36  LAW  OF  REAL  PROPERTY.  [BOOK  L 

1.  In  order  to  trace  the  origin  of  much  of  the  law  rehating 
to  real  j)roperty,  it  is  necessary  to  go  back  to  the  period  when 
the  feudal  system  was  in  its  vigor  in  England,  from  whence 
the  American  common  law  was  derived,  and  to  examine  into 
some  of  the  characteristics  of  that  system  and  the  laws  and 
institutions  to  which  it  gave  rise.  In  this  way,  too,  may  be 
traced  the  origin  of  many  terms  in  daily  use  in  treating  of 
the  ownershijD  of  real  property,  and  the  modes  of  acquiring 
and  transmitting  the  same.^  If,  therefore,  a  considerable  space 
in  this  work  is  allotted  to  a  system  which  never  prevailed 
here,  and  is  substantially  obsolete  in  most  of  its  parts  in 
England,  let  it  not  be  deemed  a  matter  of  mere  curious  learn- 
ing, since  it  serves  to  throw  light  upon  modern  jurispru- 
dence, and,  while  necessary  in  order  to  understand  it,  can  be 
gained  in  no  other  way. 

2.  As  a  preliminary  inquiry,  it  may  be  well  to  understand 
how  far  the  common  and  statute  law  of  England  have  been 
adopted  as  the  law  of  this  country.  As  a  general  proposition, 
so  much  of  these  as  was  suited  to  the  condition  of  a  people 
like  that  of  the  early  settlers  of  this  country,  was  adopted  by 
common  consent  as  the  original  common  law  of  the  colonies. 
They  brought  it  with  them  as  they  did  their  language,  and 
regarded  it  as  a  heritage  of  inestimable  value,  by  which  their 
rights  of  person  and  property  were  to  be  regulated  and  se- 
cured.2     Especially  was  this  true  in  regard  to  the  law  of  real 

property.^ 
[*15]       *  3.  To  these  were  afterwards  added  a  few  English 

statutes  enacted  after  the  emigration  to  this  country.* 
And  the  construction  put  upon  those  by  the  English  courts  by 

1  In  the  language  of  Ch.  J.  Tilghman,  in  Lyle  v.  Richards,  9  S.  &  R.  333, 
"  the  principles  of  the  feudal  system  are  so  interwoven  with  our  jurisprudence, 
that  tliere  is  no  moving  thera  without  destroying  the  whole  texture." 

-  Wheaton  v.  Peters,  8  Pet.  659 ;  Pawlet  v.  Clark,  9  Cranch,  292  ;  Patterson  v. 
Winn,  5  Pet.  241 ;  1  Kent,  Com.  343  ;  lb.  473 ;  Helms  v.  May,  29  Ga.  124 ;  Com- 
monwealth V.  Chapman,  13  Met.  68,  69 ;  Commonwealth  v.  Leach,  1  Mass.  60,  61. 

3  Sackett  v.  Sackett,  8  Pick.  315-318 ;  Marshall  v.  Piske,  6  Mass.  31 ;  Com- 
monwealth v.  Knowlton,  2  Mass.  535.  Oliver,  J.,  in  Baker  v.  Mattocks,  said : 
"  Till  the  statute  De  Donis,  Tails  were  fees  simple  conditional;  by  that,  Estates 
Tail  were  created.  We  brought  over  the  common  law  and  statute  with  us." 
Quincy  Rep.  72. 

*  Morris  v.  Vanderen,  1  Dall.  641 ;  Blankard  v.  Galdy,  4  Mod.  222 


CH.  II.]  FEUDAL   TENURES,    SEISIN,    ETC.  37 

their  adjudications  up  to  the  time  of  the  Revolution,  also  be- 
came a  part  of  the  system  of  colonial  law  which  prevailed 
here  at  the  time  of  the  separation  of  the  colonies  from  the 
mother  country,  and  constituted  their  common  law  when  they 
became  independent  States.  In  speaking  of  adopting  British 
statutes  in  tills  country,  Ch.  J.  Marshall  says  :  "  By  adopting 
them,  they  became  our  own  as  entirely  as  if  they  had  been 
enacted  by  the  legislature  of  the  State.  The  received  con- 
struction in  England  at  the  time  they  are  admitted  to  operate 
in  this  country,  indeed  to  the  time  of  our  separation  from  the 
British  empire,  may  very  properly  be  considered  as  accompa- 
nying the  statutes  themselves,  and  forming  integral  parts  of 
them.  But,  however  we  may  respect  the  subsequent  decisions, 
we  do  not  admit  their  absolute  authority.^ 

4.  It  is  for  this  reason  that  such  frequent  reference  is  made, 
while  discussing  the  matter  of  American  law,  to  English  au- 
thorities, both  in  the  form  of  decided  cases  and  books  of  estab- 
lished reputation. 

5.  The  origin  of  the  feudal  system  is  generally  ascribed  to 
the  German  tribes,  who  overran  the  Western  Empire  at  its 
decline,^  though  Spence  and  some  other  writers  discover  in 
the  dominium  directum  and  the  dominium  utile  in  lands,  under 
the  Roman  law,  the  original  of  that  relation  of  lord  and  vassal 
which  characterized  the  feudal  tenures.^ 

6.  Notwithstanding  history  is  so  full  of  the  accounts  of  this 
institution  during  the  Middle  Ages,  upon  the  Continent,  it  is 
singular  that  it  is  so  uncertain  to  this  day  when  it  was  first 
introduced  into  England,  and  whether  even  it  prevailed  there 
at  all  until  after  the  Conquest,  A.  D.  1066.  M.  Guizot  regards 
the  feudal  age  as  embracing  the  eleventh,  twelfth,  and  thir- 
teenth centuries.^ 

1  Cathcart  i'.  Eobinson,  5  Pet.  280  ;  Baring  v.  Reeder,  1  H.  &  Mun.  154. 

2  Dalrymp.  Feud.  1 ;  Co.  Lit.  191  a,  n.  77  ;  lb.  64  a,  n.  1. 

8  1  Spence,  Eq.  Jur.  30-34;  Co.  Lit.  64  a,  n.  1,  by  Hargrave.  See  also 
Maine,  Anc.  L.  300-S03 ;  Irving,  Civ.  L.  201  et  seq. ;  Ersk.  List.  204,  205,  fol.  ed. 
The  reader  is  referred  to  tlie  following  works  which  treat  of  this  subject.  Pome 
roy's  Introd.  248,  who  controverts  the  doctrine  of  Mr.  Spence.  11  Law  Mag. 
&  Rev.  HI,  which  traces  the  system  to  Roman  customs  and  law.  3  Guizot,  Hist. 
Civil  (Bohn's  ed.),  20,  21,  who  ascribes  it  to  a  German  origin.  Maine  Anc.  Law 
229,  230  ;  Maine's  Early  Hist,  of  Institutions,  171. 

4  3  Hist.  Civil,  4. 


38  LAW  OP  REAL  PROPERTY.  [BOOK  L 

It  has  led  to  much  learned  discussion,  and  names  of 
[*16]  the  highest  respectability  are  *  found  upon  both  sides  of 
the  question,  whether  the  Saxons  had  adopted  the  sys- 
tem of  feuds  in  the  tenure  of  their  lands  prior  to  that  period. 
Among  those  who  have  maintained  the  affirmative,  are  Coke, 
Selden,  Sir  William  Temple,  Dalrymple,  Millar,  Turner,  and 
Spence.^  The  writers  who  maintain  the  negative  are,  among 
others,  Ch.  J.  Hale,  Craig,  Spelman,  Camden,  Sir  Martin 
"Wright,  Somner,  and  Blackstone.^  A  modern  writer  of  much 
consideration,  in  speaking  of  this  subject,  says :  "  We  are  in 
a  great  degree  ignorant  of  the  nature  of  their  (the  Saxon) 
laws  of  landed  property.  The  most  profound  writers  are  at 
variance,  the  one  side  asserting  the  law  of  feuds  and  tenures 
to  have  been  acknowledged  ;  the  other  that  it  was  not."  ^  It 
is  of  no  practical  importance  to  settle  this  disputed  point ; 
but  probably,  as  in  most  other  controversies,  neither  party  is 
wholly  right.  The  Saxons  were,  originally,  a  German  tribe, 
and  probably  brought  with  them  many  of  the  feudal  customs 
that  prevailed  on  the  Continent,  and  among  them  the  relation 
of  lord  and  vassal ;  but  it  would  seem  that  the  doctrine  of 
tenures,  in  relation  to  lands,  as  afterwards  understood,  never 
did  prevail,  at  least  to  any  considerable  extent,  prior  to  the 
Conquest.^ 

7.  Enough,  however,  of  the  Saxon  polity  was  subsequently 
wrought  into  the  system  of  English  estates  which  grew  up 
after  the  Conquest,  to  justify  a  brief  notice  of  some  of  its 
peculiarities.  A  large  proportion  of  their  lands  were  held  as 
allodial,  that  is,  by  an  absolute  ownership,  without  recog- 
nizing any  superior  to  whom  any  duty  was  due  on  account 

1  Co.  Lit.  76  b ;  Seld.  Tit.  of  Hon.  510,  511 ;  Dalrymp.  Feud.  15 ;  2  Millar's 
Eng.  Gov.  20;  1  Spence,  Eq.  Jur.  9;  3  Kent,  Com.  601,  8th  ed.,  n. 

2  Wright,  Ten.  49,  50;  2  Bl.  Com.  48;  Spelman,  Feud.  Ch.  111.  See  also 
Wms.  Real  Prop.  3,  4 ;  2  Hallam,  Mid.  Ag.  23  (ed.  of  1824) ;  2  Law  Mag.  608. 
Mr.  Barrington  maintains  the  negative ;  Stat.  p.  69,  while  Dr.  Irving  (Civ.  L.  p. 
223)  considers  that  the  system  prevailed  to  a  certain  extent  among  the  Saxons, 
but  not  with  the  rigor  that  it  subsequently  attained. 

3  Coote,  Mortg.  4. 

<  2  SuUiv.  Lect.  105;  Id.  113;  Co.  Lit.  191  a,  Butler's  note;  Wms.  Real 
Prop.  4  ;  2  Hallam,  Mid.  Ag.  21 ;  Dalrymp.  Feud.  8,  9 ;  Gilb.  Stuart,  in  1  Sulliv. 
Lect.  xxviii. ;  3  Kent,  Com.  503,  8th  ed.  n.  The  opinion  of  Lord  Coke  is  en- 
titled to  little  consideration,  if  Hargrave  is  correct.     Co.  Lit.  64  a,  n.  1. 


CH.  II.]  FEUDAL   TENURES,    SEISIN,    ETC.  39 

thereof.^  These  lands  were  alienable  at  the  will  of  the 
owner,  by  sale,  *gift,  or  last  will.  They  were,  more-  [*17] 
over,  liable  for  his  debts,  and  on  his  death,  if  undevised, 
descended  to  his  heirs,  and  were  equally  divided  among  his 
sons.2  These  allodial  lands,  or,  as  they  were  called  in  Saxon,  hoe 
lands,  might  be  granted  upon  such  terms  and  conditions  as  the 
owner  saw  fit,  by  a  greater  or  less  estate,  to  take  effect  presently 
or  at  a  future  time,  or  on  the  happening  of  any  event,  in  which 
respect,  as  will  hereafter  appear,  they  differed  essentially  from 
feuds  or  lands  held  under  the  feudal  tenure.^  The  mode  of 
conveying  these  lands  was  either  by  delivering  possession,  or 
some  symbol  of  possession,  such  as  a  twig  or  turf  ;  or  it  might 
be,  and  was  most  commonly  done,  by  a  writing  or  charter, 
called  a  land-hoc,  which,  for  safe-keeping,  was  generally  de- 
posited in  some  monastery.* 

8.  This  subject  has  an  importance  beyond  its  mere  historical 
interest  in  two  ways :  1st,  as  explaining  some  of  the  changes 
wrought  by  William  the  Conqueror,  in  respect  to  the  property 
in  lands ;  2d,  from  the  circumstance  that  in  the  settlement  of 
the  terms  upon  which  the  lands  in  the  kingdom  were  to  be 
held,  Kent  obtained  more  favor  than  other  parts  of  it,  in  being 
allowed  to  retain  what  were  deemed  Saxon  rights  and  privi- 
leoes.  And,  when  the  charters  of  most  of  these  Colonies 
were  granted,  reference  was  therein  made  to  the  tenure  that 
prevailed  in  Kent,  whereby  the  slavish  and  militar}'  part  of  the 
ancient  feudal  tenures  was  prevented  from  taking  root  in  the 
American  soil.^     This  subject  will  be  more  intelligible  when 

1  SuUiv.  Lect.  265,  and  n. ;  2  Id.  105  ;  Gilb.  Ten.  2 ;  2  Bl.  Com.  60 ;  Wood, 
Civ.  L.  76  ;  Irving,  Civ.  L.  210,  n.,  where  the  etymology  of  the  term  is  variously 
traced.     3  Guiz.  Hist.  Civil  (Bohn's  ed.),  22. 

•■2  1  Spence,  Eq.  Jur.  20 ;'  SuUiv.  Lect.  264 ;  2  Id.  106. 

8  1  Spence,  Eq.  Jur.  21. 

4  1  Spence,  Eq.  Jur.  22,  and  n.  The  reader  may  be  reminded  of  the  sym- 
bolical transfer  of  lands  among  the  ancient  Israelites,  of  which  there  is  an 
account  in  Ruth,  iv.  7,  by  the  plucking  off  and  delivery  of  the  vendor's  shoe. 
The  symbolic  form  used  from  a  very  early  period  among  the  Romans,  was  for 
the  vendor  and  vendee  to  go  through  with  certain  forms  of  expressions  in  each 
other's  presence,  which  five  persons  witnessed,  and  a  sixth  was  present  with  a 
pair  of  scales,  by  which,  originally,  the  uncoined  copper  money  of  the  Romans 
was  weighed.     Maine  Anc.  L.  204,  Thrupp  L.  Tracts,  205. 

6  1  Spence,  Eq.  Jur.  105,  n. ;  1  Story,  Const.  169. 


40  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

Socage  and  other  tenures  are  explained.  But  it  may  be 
remembered  here,  that  wherever,  after  the  Conquest,  lands 
were  devisable  by  will,  it  was  a  relic  of  the  old  Saxon 
law  which  had  prevailed  at  the  time  of  Edward  the  Con- 
fessor. ^ 

9.  It  should  be  remembered,  that  prior  to  the  introduction 

of  the  feudal  system,  all  lands  were  allodial,  but  from 
[*18]  the  *  unsettled  state  of  Europe  during  the  tenth  and 

eleventh  centuries,  most  of  these  were  voluntarily 
changed  into  feudal  estates  by  their  proprietors,  for  the  pur- 
pose of  obtaining  the  protection  of  some  neighboring  baron 
or  chieftain  by  becoming  his  vassals. 

10.  In  no  part  of  Europe  had  the  feudal  system  obtained  a 
stronger  hold  than  in  Normandy,  and  it  was  little  more  than 
a  matter  of  course  that  William  should  have  early  taken 
measures  to  introduce  it,  in  all  its  vigor,  into  a  country 
which  he  had  acquired  partly  by  claim  of  title,  and  partly 
by  conquest.2 

11.  The  theory  of  this  system  was,  that  the  property  in,  as 
well  as  dominion  over  all  lands,  in  any  country,  was  originally 
in  the  king  or  chief  who  ruled  over  it ;  that  the  use  of  these 
was  granted  out  by  him  to  others,  who  were  permitted  to  hold 
them  upon  condition  of  performing  certain  duties  and  services 
for  their  superior,  who  theoretically  retained  the  property  in 
the  land  itself.^  The  one  who  had  the  use  of  the  land  by  this 
arrangement  was  said  to  hold  of  or  under  his  superior,  the 
.one  taking  the  name  of  lord,  the  other  of  vassal,  and  this 
right  to  hold  was  designated  by  the  term  seisin.'^  This  right 
which  the  vassal  acquired  to  hold  his  land,  having  been,  at 
first,  granted  to  him  as  a  gratuity  or  gift  of  his  lord,  took  the 
name  of  benefice  in  the  early  writers.  Benefices  were  not  in 
any  sense  hereditary.  They  were  holden  for  the  life  of  the 
grantor,  or,  at  most,  for  the  life  of  the  grantee.  It  was 
through  the  feebleness  of  the  successors  of  Charlemagne  that 
this  benefice  gradually  transformed  itself  into  the  hereditary 

1  2  Sulliv.  Lect.  105.  2  See  Maine,  Anc.  L.  231. 

3  1  Spence,  Eq.  Jur.  34,  135 ;  2  Law  Mag.  605  ;  2  Bl.  Com.  53 ;  Ayliff, 
442. 

*  1  Spence,  Eq.  Jur.  135 ;  2  Bl.  Com.  53. 


CH.  II.]  FEUDAL    TENURES,    SEISIN,    ETC.  41 

fief.  And  the  doctrine  of  primogeniture,  whereby  the  entire 
fief  went  to  the  oldest  son  by  inheritance,  though  not  univer- 
sal at  first,  became  so  by  customary  law.^  But  the  more 
common  and  apt  name  in  general  use  applied  to  it,  was  feud, 
feod,  fief,  or  fee.^  The  words  by  which  they  were  originally 
conferred  —  dedi  et  eoncessi — are  still  retained  as  opera- 
tive words  in  modern  deeds.^  This  holding  of  lands  under 
another  was  called  a  tenure,  and  was  not  limited  to  the  rela- 
tion of  the  first  or  paramount  lord  and  vassal,  but  extended 
to  those  to  whom  such  vassal,  within  the  rules  of  the  feudal 
law,  may  have  parted  out  his  own  feud  to  his  own 
vassals,  whereby  he  *  became  the  mesne  lord  between  [*19] 
his  vassals  and  his  own  or  lord  paramount.  Those 
who  held  directly  of  the  king  were  called  his  "  tenants  in 
capite,'^  or  in  chief.* 

12.  The  act  of  conferring  a  feud  or  fee  upon  a  vassal  was 
called  ?i  feoffment,^  while  that  by  which  he  was  inducted  into, 
and  admitted  to  its  actual  enjoyment,  was  an  investiture.^ 

13.  Every  vassal,  when  invested  with  the  feud,  became 
bound  to  perform  some  acts,  or  render  some  return  to  his 
lord  for  the  privileges  of  holding  the  same,  which  were  called 
the  services  of  his  tenure.  These  might  be  varied  according 
to  the  whim  or  caprice  of  the  lord.  But  there  was  always 
fealty  or  an  oath  of  fidelity  required  from  the  tenant  to  the 

1  Maine,  Anc.  L.  230,  232 ;  1  Montesq.  334.    Post,  *29. 

2  I'Sulliv.  Lect.  128  ;  Termes  de  Ley,  "Feod  " ;  1  Spence,  Eq.  Jur.  34;  Dal- 
rymp.  Feud.  199  ;  Wright,  Ten.  19  ;  lb.  4,  Irving,  Civ.  L.  200,  for  the  etymol 
ogy  of  the  word  "feud."  It  is  mentioned  by  Somner,  and  adopted  by  the 
autlior  last  cited,  that  they  took  the  name  of  feuds  when  they  began  to  be 
granted  in  perpetuity,  about  A.  D.  1000. 

3  2  Bl.  Com.  53. 

*  2  Bl.  Com.  59,  60.  In  a  work  styled  Liber  de  Antiquis  Legibus,  p.  xlix., 
published  by  tlie  Camden  Society,  there  is  an  inquisition  respecting  the  manor 
of  Newenham,  in  which,  among  the  franchises  belonging  to  tlie  manor,  were 
"  view  of  frank  pledge,  infangthief,  and  gallows,  to  execute  judgment  upon  him 
who  should  be  taken  with  stolen  goods  witliin  the  manor;  also,  fines  for  breaches 
of  the  assize  of  bread  and  beer,  and  for  shedding  of  blood,  with  hue  and  cry 
within  the  manor."  "  Also  the  lord  had  park  and  warren,  and  the  water  of  the 
Thames  with  the  bank."  This  is  referred  to  by  the  way  of  illustrating  the 
character  of  the  grants  by  which  manors  were  early  held. 

6  Termes  de  Ley,  "  Feoffment."  6  Wright,  Ten.  37. 


42  LAW   OF   REAL   PROrERTY.  [BOOK   I. 

lord,  as  incident  to  all  tenures,  without  which  no  feud  could 
subsist.^ 

14.  This  fealty  should  be  distinguished  from  the  oath  of 
allegiance,  which  is  the  obligation  which  a  subject  owes  to 
his  sovereign.^ 

15.  If  the  feud  granted  was  an  hereditary  one,  the  vassal 
was  required  to  do  homage  for  the  same,  which  consisted  in 
kneeling,  in  the  presence  of  his  fellow-vassals,  before  his 
lord,  and  declaring  in  the  formula  prescribed,  that  he  became 
his  homo  (^devenio  vester  homo),  or  man.^  Homage  could  only 
be  done  to  the  seignior  himself ;  fealty  might  be  made  to  the 
bailiff  of  the  seignior.^ 

16.  If  the  feud  was  what  was  called  a  proper  one,  the  ser- 
vices to  be  rendered  by  the  vassal  were  of  a  military  character, 
and  originally  of  an  uncertain  duration.^ 

17.  Proper  feuds  were  the  only  ones  known  to  the  law  at 
first.  But,  in  the  progress  of  society  and  the  arts  of  peace, 
improper  feuds,  as  they  were  called,  arose,  where  services  of  a 
peaceful  character,  such  as  cultivating  the  lord's  land,  an 
annual  return  of  agricultural  products,  and  the  like,  were 

substituted  for  those  of  chivahy.^ 
[*20]       *18.  There  were  certain  obligations  of  a  high  and 

solemn  nature,  assumed  by  the  lords  on  their  part  to- 
wards their  vassals,  which  will  be  more  fully  stated  hereafter. 
But  among  them  was  that  of  protecting  the  vassal  in  the 
enjoyment  of  his  feud,  and  supplying  him  with  a  new,  one 
of  equal  value  if  deprived  of  the  same,  —  the  latter  being  the 
origin  of  the  doctrine  of  "  warranty."  '  It  is  unnecessary  for 
the  purposes  of  this  work,  to  attempt  to  settle  how  and  when 
feuds,  from  being  mere  gratuities  held  at  the  will  of  the 
lord,  became  hereditary  in  the  family  of  the  feudatory.^ 
19.  In  the  foregoing  sketch  is  presented  the  outline  of  that 

1  "Wright,  Ten.  35.     For  its  form,  see  Termes  de  Ley,  "  Fealty." 
-  Termes  de  Ley,  "  Allegiance." 

8  1  Sulliv.  Lect.  223 ;  2  Bl.  Com.  5-i ;    Termes  de  Ley,   "  Homage  "  ;  Co.  Lit. 
64  a ;  Barring.  Stat.  182,  for  the  details  of  this  ceremony. 
*  3  Guizot  Hist.  Civil  (Bohn's  ed.),  155,  156. 

5  Wright,  Ten.  6,  27,  and  n. ;  1  Sulliv.  Lect.  157.  6  Wright,  Ten.  32,  33. 

1  Wright,  Ten.  38 ;  2  Bl.  Com.  57 ;  1  Sulliv.  Lect.  228. 
3  See,  on  this  subject,  Dalrymp.  Ten.  U ;  2  Montesq.  334,  B.  30,  c.  16. 


CH.  II.]  FEUDAL   TENURES,    SEISIN,   ETC.  43 

system  which  William  the  Conqueror  introduced  and  estab- 
lished in  England  in  its  full  vigor,  although  parts  of  it  may 
have  been  in  force  there  prior  to  the  Conquest.  Those  who 
fought  on  the  side  of  Harold  at  the  battle  of  Hastings,  he  af- 
fected to  regard  as  traitors,  who  by  their  treason  had  forfeited 
their  lands,  and  these  he  seized  upon,  and  after  reserving  ex- 
tensive domains  to  himself,  divided  them  among  his  Norman 
followers,  his  men  or  barons,  as  his  vassals  upon  a  strict 
feudal  tenure.  Nor  was  it  difficult,  by  a  systematic  course 
of  indignity  and  oppression,  to  drive  still  others  to  a  state  of 
open  resistance  to  his  power,  and  thereby  to  create  a  pretence 
for  seizing  upon  their  lands  as  rebels,  and  disposing  of  them 
in  the  same  manner.^  And  in  order  the  more  effectually  to 
carry  out  his  plans,  it  is  said  that  he  seized  upon  and  de- 
stroyed all  the  hoes  or  written  evidences  of  title  which  he 
could  lay  his  hand  upon,  in  the  various  monasteries  of  the 
kingdom,  in  which  they  had  been  deposited  for  safe-keeping .2 
20.  But  still  this  could  affect  only  a  part  of  the  lands  in 
England ;  and  as  a  very  large  proportion  of  them  were,  soon 
after  the  Conquest,  held  of  the  crown  by  feudal  tenure, 
writers  insist  that  there  was  something  like  a  general  surren- 
dering up  by  the  landholders  of  their  lands,  and  an  accept- 
ing: and  aRTeeino:  to  hold  the  same  under  the  king  as 
his  vassals.  The  time  *  and  circumstances  of  doing  [*21] 
this  are  detailed  by  more  than  one  writer.  The  reason 
for  this  measure,  as  stated  by  Sir  Martin  Wright,  was  that 
"  the  feudal  law  was  at  that  time  the  prevailing  law  in  Europe, 
and  was  then,  says  Sir  Henry  Spelman,  considered  to  be  the 
most  absolute  law  for  supporting  the  royal  estate,  preserving 
the  union,  confirming  peace,  and  suppressing  incendiaries  and 
rebellions."  ^  Sir  Martin  Wright  adds,  that  about  the  twen- 
tieth year  of  his  reign,  William  summoned  all  the  great  men 
and  landholders  in  the  kingdom  to  London  and  Salisbury,  to 
do  their  homage  and  swear  their  fealty,  and  that  this  was 
brought  about  through  the  consent  of  the  commune  eon- 
cilium,  and  he  quotes  the  52d  law  of  William  I.  as  confirm- 

1  2  SuUiv.  Lect.  115,  117 ;  1  Spence,  Eq.  Jur.  89,  90 ;  Wright,  Ten.  62. 
a  1  Spence,  Eq.  Jur.  22.  3  Wright,  Ten  63 ;  Maine,  Anc.  L.  231 


-♦i- 


4-4  LAW   OF    REAL   PROPERTY.  [BOOK   I. 

ing  his  statement.^  Hallam  ascribes  to  this  measure  of  Wil- 
liam, by  Avhich  all  the  landholders  of  England,  as  well  those 
who  held  in  chief  of  the  king  as  others,  acknowledged  fealty 
to  the  crown,  the  difference  in  the  condition  of  the  English 
and  French  aristocrac}'.  The  vassals  of  the  latter  owed  de- 
pendence to  their  feudal  lords  only,  and  not  to  the  crown.^ 
Whatever  may  have  been  the  circumstances  under  which 
this  change  was  wrought,  the  52d  and  58th  laws  of  William  I. 
are  said  to  have  effectually  reduced  the  lands  of  England  to 
feuds,  which  were  declared  to  be  inheritable,  and  ftom  that 
time  the  maxim  prevailed  there  that  all  lands  in  England  are 
held  from  the  king,  and  that  they  all  proceeded  from  his  free 
bounty.^  The  lands  which  had  been  granted  out  to  the 
barons  —  principal  lands — were  again  subdivided,  and  granted 
by  them  to  sub-feudataries  to  be  held  of  themselves.  Thus, 
every  freeholder  of  lands  became  the  permanent  feudatary  of 
some  superior  lord,  ascending  in  regular  gradations  to  the 
head  of  the  State,  each,  in  addition,  being  bound  by 
[*22]  the  *  oath  of  allegiance  to  the  king  to  which  his  duties 
to  his  immediate  lord  were  made  to  bend.  The  recip- 
rocal duty  of  fidelity  and  devotion  on  the  one  hand,  and  pro- 
tection of  the  person  and  warranty  of  the  estate  on  the  other, 
was  of  the  essence  of  this  connection.^ 

21.  The  reader  is  now  prepared  to  understand  and  apply 
what  formed  so  important  a  circumstance  in  respect  to  the 

1  Wright,  Ten.  52;  Id.  64-67  ;  2  Sulliv.  Lect.  118,  119.  An  ancient  Anglo- 
Saxon  clironicle  recently  published,  thus  graphically  describes  this  process  of 
feudalizing  England :  "A.  D.  1085  —  At  mid-winter,  tlie  king  was  at  Gloucester 
with  his  Witan"  (council  or  assembly),  "  and  he  held  his  court  there  five  days. 
After  this  the  king  had  a  great  consultation  and  spoke  very  deeply  with  his 
Witnn  concerning  this  land,  how  it  was  held  and  what  were  its  tenantry."  "  A. 
D.  1086 —  This  year  the  king  wore  his  crown  and  held  his  court  at  Winchester 
at  Easter,  and  he  so  journeyed  forward  that  he  was  at  Westminster  during  Pen- 
tecost, and  there  dubbed  his  son  Henry  a  knight.  And  afterwards  he  travelled 
about  so  that  he  came  to  Salisbury  at  Lammas,  and  his  Witan  and  all  tlie  land- 
owners of  substance  in  England,  whose  vassals  soever  they  were,  repaired  to 
him  there,  and  they  all  submitted  to  him  and  became  his  men,  and  swore 
oaths  of  allegiance  that  they  would  be  faithful  to  him  against  all  others." —  Con- 
suetiidines  KanticB,  ed.  by  Sandys,  London,  1851. 

2  2  Hallam,  Mid.  Ages,  31. 

3  2  Sulhv.  Lect.  llb-121 ;  Wright,  Ten.  68 ;  Id.  136 ;  1  Spence,  Eq.  Jur.  48. 
<  1  Spence,  Eq.  Jur.  92,  93 ;  Id.  95. 


CH.  II.]  FEUDAL   TENURES,   SEISIN,    ETC.  45 

lands  of  England  for  a  long  period  after  the  Conquest  —  the 
doctrine  of  Tenures.  And  although,  in  the  language  of  a 
writer,  "tenure  has  become  an  empty  name,"  ^  so  many  of 
the  terms  in  dail}^  use  are  derived  from  what  it  once  was,  as 
well  as  so  much  of  the  genius,  it  may  be  said,  of  the  modern 
law  of  real  property,  that  it  cannot  be  properly  omitted  alto- 
gether in  a  work  like  this. 

22.  Tenure  implied  not  only  the  actual  holding  by  one  of 
or  under  another,  but  also  the  terms  upon  which  he  held  his 
lands.  These  were  prescribed  when  the  feud  was  first  granted, 
unless  it  was  purely  a  military  one,  where  the  services  belong- 
ing to  it  were  implied  by  law.  And  in  the  course  of  time 
these  terms  or  services  prescribed  became  so  various  that  it 
became  a  maxim  in  the  law  of  feuds.  Tenor  investiturce  est 
ins2ncie7idus.^ 

23.  The  ancient  manors  were  divided  and  occupied  as  fol- 
lows. The  lord  reserved  for  himself  a  demesne  contiguous 
to  his  castle  sufficient  for  the  purposes  of  his  house,  liis  cattle, 
&c.  The  remainder  was  divided  into  four  parts.  Upon  one 
of  these  were  settled  a  number  of  military  tenants  sufficient 
to  do  that  part  of  the  service  which  was  due  to  his  superior 
lord.  Another  was  for  the  use  of  his  socage  tenants,  who 
ploughed  his  lands  or  returned  to  him  the  prescribed  quantity 
of  corn,  cattle,  &c.  One  part  was  for  the  lord's  villeins,  who 
did  the  servile  offices  upon  the  manor,  of  carrying  out  manure, 
building  fences,  &c.,  at  the  pleasure  of  the  lord.  The  re- 
maining part  was  reserved  as  waste  land,  out  of  which  the 
tenants  of  the  manor  supplied  themselves  with  wood, 

&c.,  for  their  fires,  fences,  and  repairing  *  their  build-  [*23] 
ings,  and  pasturage  for  their  cattle  upon  what  were 
called  the  commons.^ 

24.  It  is  said  that  William,  when  he  first  parted  his  lands 
among  his  followers,  gave  some  as  many  as  seven  hundred  of 
these  manors,  others  a  less  number,  and  some  less  than  one 
hundred.*  Those  who  received  six  or  more  were  called  the 
greater  barons ;  those  who  received  less,  the  lesser.^ 

1  1  Law  Mag.  281.  2  Wright,  Ten.  19-21. 

3  2  Sulliv.  Lect.  62,  63 ;  1  Spence,  Eq.  Jur.  95 ;  Wms.  Real  Prop.  96. 
*  1  Sulliv.  Lect.  291.     Heniy  II.  retained  in  his  day  1,422  manors  in  his  own 
possession.    2  Lyt.  Hist.  Henry  II.  288,  cited  151  No.  West.  Rev.  59. 
5  1  Spence,  Eq.  Jur.  94. 


46  LAW  OP  REAL  PROPERTY.  [BOOK  1. 

25.  Each  of  these  manors  had  a  domestic  court  of  its  own, 
made  up  of  the  several  vassals  of  the  lord  who  were  freehold- 
ers, and  were  called  the  pares  curice.  But  the  words  co-citizen 
or  co-patriot,  and  the  like,  were  unknown  to  the  feudal  language.' 
These  had  important  j)arts  to  perform,  and  among  them,  when 
feuds  became  alienable,  of  witnessing  the  ceremony  of  homage, 
investiture,  and  the  like,  by  which  lands  were  transferred.^ 
These  courts  took  the  name  of  courts  Baron,  although  the 
lords  of  the  manors  in  which  they  Avere  held  were  of  no  higher 
rank  than  gentlemen.^  With  the  exception  of  those  in  the 
Counties  Palatine,  these  courts  had  but  a  trifling  extent  of 
jurisdiction  over  civil  causes,  and  a  hmited  one  only  over 
criminal  ones.^ 

26.  Although  services  were  not  necessarily  incident  to 
tenure,  for  the  lord  originally  might  not  have  required  them, 
or  might  have  released  them,  they  were  the  usual  accompani- 
ments of  it.^ 

27.  Among  the  fruits  rather  than  services  which  pertained 
to  military  tenures,  were  relief,  wardship,  marriage,  fines,  and 
escheats,  and  though  most,  if  not  all  of  them,  were  abolished 
with  knight-service  by  Statute  12  Charles  II.  c.  2-i,  they  re- 
quire a  few  words  of  explanation. 

28.  And  first  as  to  reliefs.  As  fiefs  were,  originally,  vol- 
untary gifts,  it  was  common,  upon  a  vassal's  first  entering 
upon  his  fief,  for  him  to  make  a  gift  of  some  kind  to  his  lord. 
And  this  afterwards  came  to  be  a  duty  imposed  upon  the  heir 
upon  taking  possession  of  his  inheritance.^  This  took  the 
name  of  relief,  and  became  exceedingly  oppressive  in  its  oper- 
ation.'^    It  is  treated  as  a  feudal  service,  though,  as  remarked, 

more  technically  perhaps,  a  fruit  of  feudal  tenure,^  and, 
[*24]  though  originally  *  peculiar  to  military  feuds,  extended, 
in  time,  to  tenants  in  socage.^ 

29.  As  feuds  were  granted  upon  the  express  or  implied 
condition  of  performing  the  services  required  by  the  nature 

»  3  Guizot,  Hist.  Civil  (Bolin's  ed.),  108.  2  bi.  Com.  54. 

8  Herbert,  Inns  of  Court,  36.  4  2  Hallani,  :Mid.  Ages,  33. 

5  Wright,  Ten.  138.      6  2  Sulliv.  Lect.  121;  Wright,  Ten.  15;  2  Bl.  Com.  56. 
T  Wright,  Ten.  99.  »  Id.  97. 

9  Dalrymp.  Feud.  58;  Wright,  Ten.  104,  ascribes  it  to  the  40th  law  of  Wm.  L 


CH.  II.]  FEUDAL   TENURES,    SEISIN,   ETC.  47 

or  terms  of  the  tenure,^  it  became  customary,  after  feuds  were 
hereditary,  for  the  lord  to  take  the  lands  into  his  own  custody, 
and  provide  for  the  performance  of  the  services  during  the 
minority  and  consequent  inability  of  the  heir  to  perform  them, 
instead  of  resuming  the  feud  as  having  been  forfeited.^ 

30.  The  right  to  do  this  was  known  as  wardship,  and  em- 
braced also  the  custody  of  the  person  of  the  minor.^  As  the 
lord  was  under  no  obligation  to  account  for  the  profits  of  the 
land,  it  was  practically  a  most  oppressive  burden  upon  his 
ward.^ 

31.  Growing  out  of,  and  akin  to  the  last,  was  the  right  of 
disposing  of  his  ward  in  marriage,  or  upon  a  refusal  to  carry 
out  the  lord's  bargain,  the  infant  forfeited  the  value  of  such 
a  marriage  to  the  lord.  And  if  the  infant  married  without 
the  lord's  consent,  the  forfeiture  was  double  that  amount.^ 

32.  After  feuds  became  alienable  by  consent  of  the  lord,  he 
required  his  vassal  to  pay  a  sum  of  money  for  the  privilege  of 
exercising  this  right,  and  this  was  called  a  fine.^ 

33.  The  other  incident  of  tenures  to  be  noticed  was  escheat 
(escheoir,  to  happen),  by  which,  for  failure  of  heirs  or  corrup- 
tion of  blood  by  conviction  of  certain  crimes,  the  feud  fell 
back  into  the  lord's  hands  by  a  termination  of  the  tenure. 

34.  There  were  other  burdens  besides  these,  incident  to  an 
immediate  tenancy  under  the  crown,  which  are  referred  to 
not  to  enumerate  them,  but  to  explain  the  reason  why 

the  charters  *  of  Plymouth  and  other  of  the  American  [*25] 
colonies,  in  describing  the  tenure  by  which  they  were 
to  be  held,  expressly  exclude  that  in  capite  and  "  knight 
service,"  the  terms  of  these  charters  being  "  to  be  holden  of 
us,  our  heirs  and  successors,  as  of  our  manor  of  East  Green- 
wich in  the  County  of  Kent,  in  free  and  common  socage,  and 
not  in  capite,  nor  by  knight  service."  '^ 

35.  There  were  two  kinds  of  services  by  which  lands  were 
held,  distinguished  a.sfree  and  base,  the  free  being  such  as  free 

1  2  Dalrymp.  Feud.  44.  2  ja,  45. 

3  Wright,  Ten.  90-92.  4  2  Bl.  Com.  68,  69. 

6  2  Bl.  Com.  70  ;  Wright,  Ten.  97 ;  Wms.  Real  Prop.  97.  In  one  ca.se  the  Earl 
of  Warwick  extorted  £10,000  for  his  consent  to  the  marriage  of  his  female  ward. 
SulUv.  Lect.  248. 

6  2  Bl.  Com.  72.  .7  Col.  Laws  of  Mass.  3. 


48  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

men  could  perform  witliout  being  thereby  degraded  in  the  scale 
of  honor  and  respect,  the  base  being  such  as  were  performed 
by  the  peasants  and  persons  of  servile  rank.^ 

36.  These  were,  moreover,  divided  into  certain  and  uncer- 
tain^ according  as  the}'^  were  fixed  and  ascertained  in  quantity, 
or  depended  upon  contingencies,  and  liable  to  be  greater  or 
less,  according  to  circumstances.^ 

37.  Military  services  were  always  regarded  as  theoretically 
the  most  honorable.  But  as  the  arts  of  peace  obtained  among 
the  people,  and  it  was  discovered  to  be  quite  as  honorable  to 
promote  the  comfort  of  the  citizen  and  the  prosperity  of  the 
community,  as  to  engage  in  useless  brawls  and  local  quarrels, 
it  came  to  be  regarded  quite  as  becoming  to  the  dignity  of  a 
free  man  to  hold  his  lands  upon  condition  of  his  paying 
a  certain  quantity  of  corn  or  cattle,  or  performing  a  certain 
amount  of  rural  labor  like  ploughing  his  lord's  lands,  as 
to  be  following  him  harnessed  up  in  armor,  on  some  madcap 
expedition.  And  in  process  of  time,  these  came  to  be  the  com- 
mon services  by  which  lands  in  England  were  held,  being,  in 
the  first  place,  certain  and  defined,  and  second,  not  military  in 
their  character.^ 

38.  This  was  what  was  called  socage  te7mre.  The  lords 
often  compounded  with  their  military  tenants  and  accepted 
the  one  class  of  services  for  the  other,  till  the  term  free  and 
common  socage  came  to  define  a  tenure  where  the  services 
were  honorable  and  certain,  and  yet  not  military.* 

39.  The  origin  and  etymology  of  the  word  socage  have 
led  to  much  ingenious  speculation,  some  insisting  that  its 

root  was  Saxon  (soc),  implying  liberty  or  privilege, 
[*26]  others  that  it  was  *  derived  from  soca,  an  old  Latin 

word  meaning  plough ;  ^  or  soc,  a  French  word  for 
ploughshare.     It   is,  at   any  rate,  as  old  as   Glanville,  who 

1  2  Bl.  Cora.  62.  2  id.  61. 

3  1  SuUiv.  Lect.  157.  In  the  reign  of  Henry  II.  a  pecuniary  payment  had  been 
substituted  in  the  place  of  the  personal  attendance  of  the  military  vassal,  and  the 
custom  had  already  prevailed  of  hiring  soldiers  of  fortune  to  do  the  service.  Stu- 
art's Dis.  in  1  Sul.  Lect.  xxxviii. 

*  1  Spence,  Eq.  Jur.  52;  Dalrymp.  Feud.  ch.  2,  §  1. 

8  2  Bl.  Com.  80  ;  Wms.  Real  Prop.  98,  and  n. ;  2  Hallam,  Mid.  Ages,  Pt.  2d, 
p.  69;  Cowel,  Inter,  "socage"  and  "soc." 


CH.  II.]  FEUDAL  TENURES,    SEISIN,    ETC.  49 

wrote  in  the  time  of  Henry  II.,  and,  as  is  contended,  was  in 
use  long  prior  to  that.^  And,  as  stated  by  more  than  one 
writer,  "  the  lands  in  which  estates  in  fee-simple  were  thus 
held  appear  to  have  been  among  those  which  escaped  the 
grasp  of  the  conqueror,  and  remained  in  the  possession  of 
their  ancient  Saxon  proprietors," — which  may  account  for 
its  prevalence  in  Kent  before  knight-service  was  abolished. ^ 
40.  Besides  the  freemen  or  freeholders  who  held  by  the 
tenure  and  services  already  mentioned,  there  was  a  class  of 
persons  attached  to  every  manor,  who  were  substantially  in  the 
condition  of  slaves  who  performed  the  base  and  servile  work 
upon  the  manor  for  the  lord,  and  were,  in  most  respects,  the 
subjects  of  property,  and  belonged  to  hira.^  These  were 
called  villeins,  the  etymology  of  which  word  is  somewhat 
doubtful,^  and  many  of  them  were  employed  to  till  the  land 
without  having  any  interest  in  or  right  to  the  soil  they  culti- 
vated. By  being  permitted  to  occupy  certain  parts  of  the 
manor,  and,  at  last,  allowed  to  do  fealty  for  these,  there  grew 
up  a  kind  of  tenure  of  lands  which  was  called  villeinage.  At 
first  its  services  were  not  only  base,  such  as  above  described, 
but  wholly  uncertain,  dependent  on  the  will  of  the  lord. 
The  next  step  was  in  case  of  the  more  favored  ones,  to  de- 
fine and  limit  what  the  amount  of  these  services  should  be, 
and  a  tenure  thus  improved  in  its  character  took  the  name  of 
villein  socage  —  the  services,  though  base,  being  certain.^  As 
a  matter  of  history,  more  than  half  the  lands  in  England 
were  at  one  time  held  in  villeinage,  and  the  greater  part  of 
the  people  were  in  a  state  of  vassalage  connected  with  such  a 
tenure,  and,  what  is  remarkable,  it  owes  its  extinction  to  no 
act  of  legislation.  It  gradually  yielded  to  the  force  of  public 
sentiment  and  the  influence  of  the  courts  till  it  practically 
ceased.  The  last  case  of  the  kind  reported  was  decided  in 
the  15th  James  I.^     And,  as  stated  by  Lord  Mansfield  in 

1  Wright,  Ten.  141,  and  n. ;  1  Spence,  Eq.  Jur.  98 ;  Dalrymp.  Feud,  ch.  2,  §  1. 

2  Wms.  Real  Prop.  98;  2  Hallara,  Mid.  Ages,  Pt.  2d,  p.  60. 

3  Wriglit,  Ten.  213;  1  Spence,  Eq.  Jur.  95. 

*  Cowel,  Interpret.  "  Villaine  " ;  Wright,  Ten.  205,  n.     Some  deriving  it  from 
vilis,  others  villa,  a  country  farm. 

6  1  Spence,  Eq.  Jur.  95;  Wright,  Ten.  212-215;  2  Bl.  Com.  61. 

6  Noy,  27;  Barring,  Stat.  272;  Hargrave,  Argument,  11  State  Trials,  842. 

VOL.   I.  4 


50  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

Soraersett's  case,  there  were  but  two  villeins  remaining  in 
all  England  when  tenures  were  abolished  in  the  reign  of 
Charles  II.^ 

41.  Out  of  this  class  of  tenure  grew  up  the  modern  copy- 
holds, which,  though  they  form  an  important  branch  of  the 
English  law  of  real  property,  have  no  direct  application  in  the 

United  States.^ 
[*27]  42.  *  Free  and  common  socage  is  the  tenure  by  wliich, 
at  this  day,  all  the  freehold  lands  in  England  are  held.^ 
And  although  theoretically  all  these  lands  are  held  of  the 
crown,  this  could  only  be  through  a  seisin  bond  from  the  king 
as  lord  paramount,  since  a  tenant  in  free  and  common  socage 
could  not,  originally,  have  held  immediately  of  the  king.* 

43.  The  commissioners  upon  the  English  law  of  real  prop- 
erty, while  they  oppose  the  idea  of  abolishing  tenure  b}^  law, 
speak  thus  of  free  and  common  socage,  by  which,  as  they  say, 
the  great  bulk  of  the  land  in  England  is  now  held :  "  It  has 
all  the  advantages  of  allodial  ownership.  The  dominium  utile 
vested  in  the  tenant,  comprises  the  sole  and  undivided  interest 
in  the  soil.  Escheat  is  the  only  material  incident  of  this  ten- 
ure beneficial  to  the  lord,  and  while  there  is  an  heir  or  a 
devisee  he  can  in  no  way  interfere.  The  tenant  in  fee-simple 
of  socage  lands  can  of  his  own  authority  create  in  it  any  es- 
tates and  interests  not  contrary  to  the  general  rules  of  law. 
He.  can  alien  it  entirely,  or  devise  it  to  whom  he  pleases,  and 
the  alienee  or  devisee  takes  directly  from  him.  so  that  the  title 
is  complete  without  concurrence  or  priority  of  the  lord."  Nor 
has    tenure   any  longer  any  reference  to  the  profession   or 

1  Lom,  Rep.  8. 

2  Wms.  Real  Prop.  287,  288,  and  note  by  Rawle.  Some  of  the  above  propo- 
sitions, such,  for  instance,  as  the  alleged  origin  of  copyhold  estates,  have  indeed 
been  controverted.  But  those  writers  have  been  followed  whose  authority  has 
been  supposed  to  be  reliable,  without  occupying  any  more  space  in  wliat  must 
at  best  be  useful,  if  at  all,  in  the  way  of  explanation  and  introduction  to  the 
more  practical  parts  of  the  work.  Lord  Loughborough  maintained  that  the 
tenure  of  copyhold  was  derived  from  Germany,  and  that  the  copyholder  was  a 
freeman,  and  the  tenure  had  no  connection  with  villeinage  —  Dong.  Rep.  679,  n. 
2.  Wilmot,  J.,  on  the  other  hand,  insists  that  copyhold  estates  were  tenancies 
at  will,  a  middle  estate  between  freeholders  and  villeins  —  3  Bur.  R.  1543.  See 
also  Gilb.  Ten.,  5th  ed.,  197. 

3  Wms.  Real  Prop.  98 ;  1  Spence,  Eq.  Jur.  98 ;  Stat.  12  Char.  II.  ch.  xxir. 
*  2  Bl.  Com.  86 ;  Jackson  v.  Schutz,  18  Johns.  186,  per  Piatt,  J 


CH.  II.]  FEUDAL   TENURES,    SEISIN,    ETC.  61 

rank  of  the  tenant,  or  the  purposes  to  which  the  lands  are 
applied.^ 

44.  To  recur  to  the  extent  of  ownership  or  quantity  of  es- 
tate which  the  vassal  might  acquire  in  his  feud,  it  was  a  part 
of  the  original  arrangement  between  William  and  his  greater 
barons,  that  they  might  reward  their  followers  by  dividing  out 
to  them  smaller  portions  of  land  to  be  held  by  their  grantees, 
as  vassals,  in  the  manner  already  mentioned.^ 

45.  For  a  considerable  period  after  the  Conquest,  no  vassal 
could  alien  his  feud,  although  an  inheritable  one,  with- 
out *  consent  of  his  lord,  lest  he  might  bring  in  an  [*28] 
enemy  to  share  in  the  domain ;  nor  was  it  subject  to 

his  debts  until  the  Stat,  of  Westm.  2,  c.  18,  A.  D.  1285.  On 
the  other  hand,  the  lord  could  not  alien  his  seigniory  without 
the  consent  of  his  feudatary,  which  was  called  an  attornment.^ 

46.  But  it  was  as  competent  for  the  lord  in  parting  with  his 
feud  to  a  vassal  to  prescribe  the  duration  of  his  ownership  and 
to  whom  it  should  pass  afterwards,  as  it  was  to  dictate  the 
terms  and  services  subject  to  which  he  was  to  hold  it. 

47.  For  this  reason,  great  strictness  was  observed  in  con- 
struing and  applying  the  language  made  use  of  in  making  the 
donation  of  the  feud,  "  ne  quis  plus  donasse  presumatur  quam 
in  donatione  expresserit." 

48.  Thus  if  the  donation  was  made  to  a  man  and  his  sons, 
all  the  sons  succeeded  to  the  feud  in  capita^  and  upon  the 
death  of  one  of  them  his  share,  instead  of  going  to  his 
brothers,  reverted  to  the  lord.*  So  if  the  gift  was  to  one  with- 
out any  words  of  limitation,  it  was  only  for  such  a  term  of 
time  as  he  could  personally  hold  it,  namely,  for  his  own 
life.5 

49.  But  if  given  to  one  and  his  heirs,  it  was  understood  to 
pass  in  succession,  after  his  death,  without  being  subject  to 
his  control  by  any  act  done  by  him,  to  his  descendants,  who 

1  Eep.  Eng.  Comm'rs  Eeal  Prop.  6-8.  2  1  Sf)ence,  Eq.  Jur.  93,  94. 

5  2  Bl.  Com.  57;  1  Spence,  Eq.  Jur.  187;  Wright,  Ten.  168;  Id.  170.  This 
attornment  was  originally  performed  in  the  presence  of  the  pares  curice,  and  sig- 
nified the  turning  over  from  the  former  lord  to  a  new  one.  1  Sulliv.  Lect.  227; 
Lindley  v.  Dakin,  13  Ind.  388. 

*  Wright,  Ten.  16,  17 ;  Id.  151,  152. 

5  Id.  152 ;  Wms.  Real  Prop.  47  ;  Co.  Lit.  42  a. 


52  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

were  recognized  by  the  feudal  law  as  heirs.  All  the  males  at 
first  took  equally,  but  afterwards,  in  analogy  to  the  military 
feuds,  the  oldest  son  took  the  whole,  to  the  exclusion  of  the 
rest.^  In  this  way  it  is  not  difiScult  to  understand  the  origin 
and  reason  of  the  rule  which  requires  at  common  law  the  use 

of  the  word  "  heirs  "  in  a  deed  of  grant,  in  order  to 
[*29]  pass  a  fee  or  *  estate  of  inheritance  in  the  land  granted, 

for  which  no  synonym  can  be  substituted .^ 

50.  Such  in  this  respect  is  the  common  law  of  this  country. 
But  it  has  been  altered  by  statute  in  many  of  the  States,  giv- 
ing to  deeds,  in  effect,  the  same  construction  as  has  long  been 
given  to  wills,  and  passing  an  estate  of  inheritance  where 
such  ajDpears  from  the  instrument  to  be  the  intention  of  the 
grantor.^  And  in  case  of  a  contract  to  convey  lands  without 
specifying  the  estate  to  be  granted,  equity  always  construes  it 
to  mean  a  conveyance  to  the  purchaser  and  his  heirs.^ 

51.  In  reference  to  the  dignity  and  importance  of  the 
estates  or  quantities  of  interest  in  socage  lands  which  might 
be  created,  some  were  denominated  freehold,  and  others  less 
than  freehold,  —  the  one  being  such  as  a  freeman  might 
consistently  hold,  the  other  of  less  duration  or  amount.  The 
first  of  these  must  have  been,  at  least,  for  the  life  of  the 
tenant,  though  afterwards  extended  to  an  estate  for  the  life 
of  another,  and  finally  to  any  estate  of  uncertain  duration, 

1  2  Bl.  Com.  56,  57  ;  Wms.  Real  Prop.  18  ;  1  Spence,  Eq.  Jur.  175,  176  ;  3  Rep. 
Eng.  Comm'rs  Real  Prop.  137.  Dalrymple,  p.  205,  states  that  the  right  of  primo- 
geniture was  established  by  William  I.  It  would  seem  that  primogeniture  did 
not  obtain  in  respect  to  socage  lands  until  the  reign  of  Henry  III.  Co.  Lit.  191 
a,  Butler's  note,  77.     Maine,  Anc.  L.  230,  231. 

2  2  Prest.  Est.  11,  12. 

3  "Heirs,"  or* words  of  inheritance  by  statute,  are  not  requisite  to  create  or 
convey  an  estate  in  fee  in  grants  or  devises  in  the  following  States  :  —  Alabama, 
Code,  18G7,  §  1569.  Arkansas,  Rev.  Stat.  1837,  ch.  31,  §  3.  Georgia,  Code, 
§  2218;  Adams  v.  Guerard,  29  Ga.  651.  Illinois,  Rev.  Stat.  1874,  p.  275.  Iowa, 
Code,  1873,  §  1929 ;  Karmuller  v.  Krotz,  18  Iowa,  358.  Kentucky,  Rev.  Stat. 
1834,  p.  443.  Mississippi,  Code,  c.  52,  §  2285.  Missouri,  Gen.  Stat.  1866,  p.  442. 
New  York,  1  Stat,  at  Large,  699.  Tennessee,  Stat.  1851 ;  Cromwell  v.  Win- 
chester, 2  Head,  389.  Texas,  Paschal  Dig.  258.  Virginia,  Code,  1860,  p.  559. 
Maryland,  1  Gen.  L.  133.  In  New  Jersey  and  North  Carolina  this  is  limited 
to  wills.  Nebraska,  Gen.  Stat.  1873,  p.  881.  Dakota,  Civ.  Code,  1866.  New 
Hampshire ;   Cole  v.  Lake  Co.,  54  N.  H.  242,  289. 

4  Tud.  Cas.  587. 


CH.  II.]  FEUDAL   TENURES,    SEISIN,    ETC.  53 

not  depending  upon  the  will  of  another,  and  which  might  last 
for  the  term  of  a  life.^ 

52.  The  word  freehold  has  now  come  to  imply  the  quantity 
of  estate,  rather  than  the  quality  of  tenure  or  dignity  of  per- 
son of  the  holder.^ 

63.  Such  estates  as  these  could  originally  be  created  only 
by  Hvery  of  seisin,  and  at  this  day  seisin  can  only  be  predi- 
cated of  what  are  called  freehold  estates.  Beyond  its  effect 
upon  the  quality  of  tenure,  as  originally  understood, 
the  quantity  or  *  duration  of  ownership  in  lands  be-  [*30] 
longs  to  the  subject  of  Estates,  and  will  be  further 
treated  in  that  connection. 

54.  Although,  as  has  been  stated,  no  vassal  could  alien  his 
feud  under  the  system  established  by  William  I.,  and  although 
in  1290,  as  will  be  shown,  all  restraints  upon  alienation  were 
removed  by  statute ;  in  order  to  understand  what  has  been 
said,  as  well  as  the  reasons  for  so  decided  a  change,  it  is 
necessary  to  recur  to  some  of  the  steps  by  which  it  was  brought 
about.  The  doctrine  of  tenures  proper  is  thus  far  to  be  un- 
derstood as  chiefly  relating  to  the  lords  to  whom  the  manors 
were  originally  allotted  by  the  crown,  and  their  representa- 
tives, and  the  vassals  to  whom  these  lords  had  parted  out  their 
lands,  or  who  had  come  into  their  place  by  descent  or  aliena- 
tion by  the  lord's  consent. 

55.  And  it  may  be  remarked,  in  passing,  that  the  creation 
of  any  new  manors  was,  in  effect,  abolished  by  the  statute  of 
Quia  Mmptores,  passed  in  the  j^ear  above  mentioned.^ 

56.  But  it  would  have  been  strange  if,  as  these  vassals  and 
their  descendants  became  more  settled  and  intelligent,  they 
should  not  have  resorted  to  some  means  for  evading  the  rigors 
of  such  a  sj^stem.  This  they  did  with  great  effect,  by  means 
of  suhmfeudatio7i. 

1  Wms.  Real  Prop.  22;  1  Prest.  Est.  203  ;  2  Bl.  Com.  104  ;  1  Law  Mag.  550. 
Mr.  Pomeroy  insists  that  no  feud  was  at  any  time  granted  for  less  tlian  a  freehold. 
Introd.  256.     Ante,  p.  *18. 

2  1  Law  Mag.  551 ;  2  Bl.  Com.  103  ;  1  Pres.  Est.  200 ;  Wms.  Real  Prop.  22. 

3  Wms.  Real  Prop.  96  ;  Van  Rensellaer  v.  Hays,  19  N.  Y.  72 ;  post,  pi.  61 ; 
Kitchen  on  Courts,  ed.  1675,  p.  7.  For  the  grounds  upon  which  manors  were 
established  and  manorial  rights  sustained  in  New  York,  see  post,  vol.  2,  p.  *524, 
pL  23. 


54  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

57.  The  vassal  parted  out  his  land  to  under-tenants,  who 
held  them  of  him  instead  of  his  lord,  and  thus  created  a 
feudal  tenure  between  the  tenant  and  his  feoffor,  although  it 
was  not  regarded  in  the  light  of  an  alienation  by  the  vassal, 
or  transfer  of  the  tenure  itself,  but  as  something  to  which  they 
gave  the  name  of  subinfeudation,  or  carving  a  new  and  in- 
ferior feud  out  of  the  old  one  still  subsisting.^ 

58.  And  it  is  said  that  such  a  thing  as  an  absolute  sale  of 
land  for  a  sum  of  money  paid  down,  was  scarcely  to  be  met 
with.  The  alienation,  such  as  it  was,  assumed  rather  the 
form  of  a  perpetual  lease,  granted  in  consideration  of  certain 

services  or  rents.  The  old  conveyances  almost  uniform- 
[*31]  ly  gave  the  *lands  to  the  grantee  and  his  heirs  to  hold 

as  tenants  of  the  grantor,  and  his  heirs,  at  certain  rents 
and  services.^ 

59.  This  subinfeudation,  though  it  did  not  relieve  the  vas- 
sal from  the  services  he  owed  to  his  lord,  operated  unfavorably 
upon  the  latter,  since  the  vassal  had  little  inducement  to  pay 
a  fine  for  the  privilege  of  doing  what  he  could  accomplish  in 
another  way,  and  it  besides  seriously  impaired  his  other  fruits 
of  tenure.  The  consequence  was,  wlien  the  barons  extorted 
the  Magna  Charta,  A.  D.  1215,  a  clause  was  inserted  prohib- 
iting the  subinfeudation  of  an  entire  feud,  and  requiring  the 
vassal  to  retain  enough  of  it  to  secure  the  services  due  on 
account  of  such  feud.^ 

60.  And  3'et,  it  is  said  that  this  clause  in  the  Magna  Charta 
was  the  first  authoritative  provision  by  law  for  allowing  the 
free  alienation  of  lands.^ 

61.  The  final  bloAv  to  the  custom  of  subinfeudation  was 
given  by  the  Stat.  18  Edward  I.,  called  the  Statute  Quia  Emp- 
tores,  passed  in  1290.  It  was  done  by  giving  every  freeholder 
a  right  to  sell  a  part  or  all  of  his  land^,  and  substitutes  the 
purchaser  in  the  place  of  his  vendor  in  respect  to  the  chief 
lord  of  the  fee,  requiring  him  to  perform  the  services  which 

1  Wright,  Ten.  15-1,  155,  and  n.;  Dalrymp.  Feud.  GO;  1  Spence,  Eq.  Jur. 
137  ;  Van  Rensellaer  v.  Hays,  sup. 

2  Wms.  Real  Prop.  3. 

3  Dalrymp.  Feud,  60 ;  Wright,  Ten.  157 ;  1  Spence,  Eq.  Jur.  137  ;  Magna 
Charta,  ch.  xxxii. 

4  2  SuUiv.  Lect.  288,  289. 


CH.  II.]  FEUDAL   TENURES,   SEISIN,   ETC.  65 

had  been  due  from  his  vendor,  or,  if  part  only  of  a  feud  was 
granted,  the  services  were  apportioned.^  This  statute  did 
not  extend  to  the  king's  tenants,  nor  did  it,  as  will  be  per- 
ceived, relieve  the  lands  of  the  kingdom  from  the  burdens 
of  tenure.^ 

*  62.  Every  owner  of  a  fee-simple  estate  has  now  full  [*32] 
liberty  to  dispose  of  it  by  deed,  since  military  tenures 
were  abolished  by  statute,  Charles  II.,  before  mentioned.^ 

63.  It  may  in  this  connection  be  observed,  that  there  was 
originally  the  same  restriction  as  to  devising  lands  by  last 
will  as  there  was  to  aliening  tliem  inter  vivos  by  deed,  nor 
could  it  be  done  except  by  the  contrivance  of  uses,  until  the 
32d  and  34th  Henry  VIII.,  A.  D.  1543.4 

64.  Having  thus  considered  the  doctrines  of  tenure  and 
alienation  of  lauds,  it  may  be  well  to  inquire  into  the  mode 
by  which  tenants  acquired  their  property  therein  before  the 
nature  and  qualities  of  their  estates  are  examined.  This  was 
done  by  what  was  called  an  investiture  or  livery  of  seisin.  It 
was  borrowed  from  the  Roman  law  in  the  time  of  the  empire, 
by  which  no  donation  of  a  feud  could  be  good  without  corpo- 
real investiture  or  open  and  notorious  delivery  of  possession 
in  the  presence  of  the  neighbors.^  The  Mexican  law  required 
a  formal  deliveiy  of  possession  of  real  property,  after  grant 
made,  for  the  investiture  of  the  title.^ 

65.  The  mode  of  doing  it  was  by  the  lord,  or  some  one  em- 
powered by  him,  going  upon  the  land  with  the  tenant,  and 
giving  him  actual  possession  by  putting  into  his  hand  some 

1  Wright,  Ten.  160 ;  2  Sullivan,  Lect.  289,  290 ;  Wms.  Real  Prop.  56 ;  Smith, 
Land.  &  Ten.  5. 

2  Wright,  Ten.  161  ;  Van  Rensellaer  v.  Hays,  19  N.  Y.  72-75.  Tliis  statute 
takes  its  name  from  the  first  words  of  the  first  chapter,  "  Quia  emptores  terrarmn." 
Lord  Coke  says  :  "  Many  excellent  things  are  enacted  by  this  statute,  and  all  the 
doubts  upon  this  (32)  chapter  of  Magna  Charta  were  cleared,  both  statutes  hav- 
ing both  one  end,  that  is  to  say,  for  the  upholding  and  preservation  of  the  tenures 
whereby  the  lands  were  holden,  this  act  being  enacted  ad  instantiani  magnatum 
regni."  Coke,  2d  Inst.  66.  And  Hargrave  (Co.  Lit.  43  a,  note  251)  says,  "In 
fact,  the  history  of  our  law,  with  respect  to  the  powers  of  alienation  before  the 
statute  of  Quia  Emptores,  is  very  much  involved  in  obscurity." 

3  Wms.  Real  Prop.  80.  *  Wright,  Ten.  172. 

5  1  Spence,  Eq.  Jur.  139  ;  Green  v.  Liter,  8  Cranch,  229.  Thrupp,  L.  Tracts, 
205 ;  Giiterbock,  Brae,  by  Coxe,  114. 

6  Graham  v.  United  States,  4  Wall.  269. 


56  LAW   OF   REAL   PROPERTY.  [bOOK   L 

part  of  the  premises,  like  a  turf  or  twig,  in  tlie  presence  of 
the  pares  curice,  the  peers  of  the  lord's  court,  who  were  the 
tenants  and  vassals  of  the  lord.  This  was  technically  liveri/ 
of  seisin,  —  the  term  seisin  havnig  a  technical,  comj^lex  mean- 
ing, and  being,  in  the  sense  of  the  law,  "  the  completion  of 
the  feudal  investiture  by  which  the  tenant  was  admitted  into 
the  feud  and  performed  the  rights  of  homages  and  fealty." 
He  then  became  tenant  of  the  freehold.^ 

66.  If  the  lands  were  all  in  one  manor,  though  consisting  of 
different  parcels,  entry  upon  one  was  sufficient  as  to  all,  since 
the  same  pares  curice  were  witnesses  in  respect  to  all  the  lands 
in  that  manor.  But  if  the  parcels  were  in  different  manors, 
the  entry  must  be  made  upon  each  that  it  might  be  witnessed 

by  the  pares  of  each.     And  this  was  the  origin  of  an 
[*33]  existing  rule  *  of  law,  that  if  lands  are  situated  in  dif- 
ferent counties,  there  must  be  an  entry  upon  those  in 
each  county  to  give  an  actual  seisin  thereof.^ 

67.  No  deed  or  writing  was  necessary  to  complete  the  title 
of  the  tenant,  though  it  was  common  as  a  mode  of  preserving 
the  evidence  of  the  transaction,  as  well  as  the  terms  and  ser- 
vices upon  which  he  was  to  hold,  to  have  it  written  in  what 
were  called  hrevia  testata,  which  answered  to  modern  deeds. 
These  were  authenticated  by  the  seal,  and  name  or  mark  of 
the  lord,  attested  by  some  of  the  pares. ^ 

68.  Another  form  of  accomplishing  the  same  end,  which  was 
sometimes  used,  and  supplied  the  etymology  of  the  term  in- 
vestiture, was  for  the  lord  to  make  livery  of  the  land  by  a 
symbol,  such  as  delivering  to  the  tenant  a  staff,  a  ring,  or  a 
sword,  or,  what  was  more  common,  putting  a  robe  upon  him.^ 

69.  The  transfer  of  title  and  possession  to  the  tenant  by 
either  of  these  modes  constituted  a  feoffment,  a  term  still  re- 
tained to  express  the  thing  signified,  though  the  form  of  accom- 
plishing it  has  long  since  given  place  to  modern  deeds  of  con- 
veyance. 

70.  In  the  theory  of  the  law  there  was  and  could  be  but  oue 

1  1  SuUiv.  Lect.  142 ;  Co.  Lit.  266  b,  n.  217 ;  Stearns,  Real  Act.  2. 

2  1  Sulliv.  Lect.  142,  143. 

8  Id.  145 ;  1  Atkinson,  Conv.  11 ;  1  Spence,  Eq.  Jur.  160. 
*  1  SulUv.  Lect.  143. 


CH.  II.]  FEUDAL   TENURES,   SEISIN,   ETC.  57 

seisiD  of  lands.  He  who  had  that  became  one  of  the  pares 
curice,  did  the  services,  and  was  recognized,  at  least  for  the 
time  being,  as  the  rightful  owner.  If  there  were  several  in 
possession  and  one  of  them  had  the  legal  title,  he  alone  had 
the  seisin. 1 

71.  This  feudal  idea  of  seisin  is  so  inwrought  into  the  whole 
theory  of  the  law  of  real  estate,  and  especially  of  acquiring 
and  transferring  titles  thereto,  that  it  is  difficult  to  under- 
stand and  apply  the  language  and  reasoning  of  our  own  courts 
upon  the  subject,  without  a  somewhat  intimate  knowledge  of 
what  the  early  law  was  upon  the  subject. 

*  72.  This  must  serve  as  an  explanation  why  still  fur-  [*3'i] 
ther  space  is  allotted  to  it  in  this  work,  although  livery 
of  seisin  is  done  away  with  in  England  by  the  8th  and  9th 
Victoria  (1845),  and,  if  it  ever  was  made  use  of  in  this 
country  as  a  mode  of  conveying  land,  it  long  since  became 
merely  symbolical  in  its  nature.^ 

1  Lit.  §  701.  Cornell  v.  Jackson,  3  Cush.  508.  So  essential  was  livery  of 
seisin  to  the  transfer  of  lands,  that  one  reason  why  lands  were  not  devisable 
after  they  had  become  alienable  was  that  the  devisor  being  dead  when  his  will 
was  to  take  effect,  could  not  make  the  necessary  livery.     1  Spence,  Eq.  Jur.  136. 

^  1  Spence,  Eq.  Jur.  156.  Sullivan  in  his  treatise  on  Land  Titles  says,  that 
when  the  country  was  first  settled  the  ceremony  of  hvery  of  seisin  was  in  use, 
and  mentions  an  instance  where  the  council  of  Plymouth  made  livery  to  Vines 
and  Oldham  of  their  patent  on  Saco  River,  in  1642,  and  that  from  that  time  the 
ceremony  was  observed  in  York,  Me.,  until  1692.  Massachusetts  dispensed  with 
this  form  by  statute  in  1642,  and  in  Plymouth  it  was  very  early  superseded  by 
deed  acknowledged  and  recorded.  Colony  L.  p.  85,  86.  Judge  Kent  asserts 
that  "  we  have  never  adopted  in  this  country  the  common-law  conveyance  by 
feoffment  livery  "  &c.  4  Kent  Com.  84.  Judge  Sharswood,  of  Philadelphia,  a 
high  authority,  says,  "It  is  obvious  that  prior  to  the  act  of  frauds  and  perjuries 
of  21st  of  March,  1772,  a  parol  feoffment  with  livery  was  a  valid  conveyance 
of  lands."  He  quotes  tlie  language  of  Ch.  J.  Tilghman  :  "  What  would  be  the 
effect  of  a  feoffment  with  livery  is  another  question,  and  I  give  no  opinion  on  it. 
It  is  a  kind  of  conveyance  out  of  use,  indeed,  I  have  never  heard  of  one  in  Penn- 
sylvania; "  and  adds,  "  I  have,  however,  seen  an  early  deed  for  a  lot  in  Philadel- 
phia, with  an  indorsement  of  livery,  and  in  another  chain  of  title  met  with  a 
letter  of  attorney  to  make  livery."  Vide  Smith,  Land.  &  Ten.,  Morris's  ed.  6,  n. 
A  statute  of  Massachusetts  in  1652,  declares  that  a  sale  of  land  and  giving  pos- 
session shall  not  be  good  unless  it  be  by  deed,  acknowledged  and  recorded 
according  to  law.  Colony  L.  85.  la  Kentucky,  livery  of  seisin  is  unheard  of. 
Davis  V.  Mason,  1  Pet.  504.  In  Connecticut,  it  is  said,  "  although  in  the  early 
settlement  of  this  State  there  were  instances  where  livery  of  seisin  was  formally 
confirmed,  none  of  recent  date  can  be  found,  and  it  has  never  been  the  general 
practice  here  to  accompany  a  conveyance  of  land  with  that  ceremony."  Per 
Storrs,  J.,  Bryan  v.  Bradley,  16  Conn.  480.     See  also  4  Dane  Abr.  60,  61,  85. 


58  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

73.  Seisin,  as  now  understood,  is  either  in  fact  or  in  law. 
The  first  has  been  ah'eady  described.  .  The  other-  occurs,  for 
example,  where  an  ancestor  or  devisor  dies  leaving  his  lands 
vacant ;  the  heir  in  the  one  case  and  the  devisee  in  the  other 
are  deemed,  by  the  law,  to  have  a  seisin,  which  may  at  any 
time  be  converted  into  a  seisin  in  fact.^ 

74.  To  constitute  a  seisin  in  fact,  there  must  be  an  actual 
possession  of  the  land ;  for  a  seisin  in  law,  there  must  be  a 
right  of  immediate  possession  according  to  the  nature  of  the 
interest,  whether  corporeal  or  incorporeal.^ 

75.  Seisin   in   fact,    necessarily   implies   possession,   there 

being  "  no  legal  difference  between  the  words  seisin 
[*35]  and  *  possession,"  ^  if  the  possession  be  with  an  intent 

on  the  part  of  him  who  holds  it  to  claim  a  freehold 
interest.*  And  if  one  be  in  possession  of  land  under  color  of 
title,  any  one  claiming  adversely  to  him  must  prove  a  better 
title  in  order  to  justify  disturbing  him  in  his  possession.^ 
So  one  in  possession  of  land  may  have  trespass  against  a 
stranger  who  enters  upon  it.  though  he  is  not  able  to  show 
any  title.^ 

76.  If  one  enters  upon  an  estate  having  title  thereto,  the 
lawpresumes  the  possession  to  be  according  to  his  title,  without 
requiring  any  other  proof  of  intent.''  So  if  several  persons 
have  a  mixed  possession,  as  it  is  called,  of  land,  and  one  of 
them  has  title  to  it,  the  seisin  belongs  to  him  ouly.^  For 
though  there  may  be  a  concurrent  possession,  there  cannot  be 
a  concurrent  seisin  of  lands.^  But  if  one  have  possession 
without  title,  an  intent  thereby  to  gain  the  seisin  must  be 
proved  in  order  to  give  it  that  effect.^*^ 

1  Stearns,  Real  Act.  2 ;  Co.  Lit.  266  b,  n.  217;  Banister  v.  Henderson,  Quincy, 
123. 

2  Co.  Lit.  266  b,  n.  217 ;  Cowell,  Interp.  "  Seisin  " ;  Com.  Dig.  "  Seisin,"  A. 
1  &  2 ;  2  Prest.  Abs.  282. 

3  Slater  ;;.  Rawson,  6  Met.  439 ;  Co.  Lit.  153  a. 

■»  Towle  V.  Ayer,  8  N.  H.  58.  But  tliat  seisina  and  possessio  are  used  "promis- 
cuously," see  Giiterbock  Brae,  by  Coxe,  90. 

5  Linthicum  v.  Roy,  9  Wall.  243.  «  Look  v.  Norton,  55  Maine,  103. 

7  Means  v.  Welles,  12  Met.  357  ;  Barr  v.  Gratz,  4  Wheat.  213  ;  Green  v.  Liter, 
8  Cranch,  229;  Gardner  v.  Gooch,  48  Me.  487. 

8  Slater  v.  Rawson,  6  Met.  439  ;  Barr  w.  Gratz,  4  Wheat.  213 ;  Mather  v.  Min- 
isters,  &c.,  3  S.  &  R.  511;  Winter  v.  Stevens,  9  Allen,  530. 

9  Munroe  v.  Luke,  1  Met.  466  ;  Langdon  v.  Potter,  3  Mass.  215. 

10  Bradstreet  v.  Huntington,  5  Pet.  402 ;  Ewing  v.  Burnet,  9  Pet.  52. 


CH.  11.]  FEUDAL   TENURES,   SEISIN,   ETC.  59 

77.  If  a  seisin  by  one  is  proved  or  admitted,  it  will  be  pre- 
sumed to  continue  till  the  contrary  is  shown.^ 

78.  No  one  who  has  a  seisin  and  title  to  land  will  lose  his 
seisin  by  any  entry  by  a  stranger,  so  long  as  he  retains  the 
possession.^  Accordingly,  if  a  man  entered  and  made  a  feoff- 
ment, the  owner  being  upon  the  land,  the  feoffment  was 
void.  3 

79.  Nor  will  one  gain  a  seisin  by  occupying  lands  by  per- 
mission of  the  owner.  And  if  he  enter  by  such  permission, 
nothing  short  of  open  and  unequivocal  acts  of  disseisin  done 
by  him  and  known  to  the  owner  can  deprive  the  latter  of  his 
seisin.* 

80.  In  respect  to  the  modes  of  acquiring  actual  seisin  or 
seisin  in  fact,  if  one  has  a  freehold  title  to  lands  and  enters 
upon  any  part  of  them,  he  by  that  simple  entry  gains  a  seisin 
of  all  the  lands  in  the  possession  of  the  same  tenant  to  which 
he  has  title  in  the  county.  And  where  one  has  been  disseised 
and  wishes  to  convey  the  lands  which  he  cannot  do  till  he 
regains  his  seisin,  it  is  the  usual  way  to  go  upon  some  part 
of  the  premises  and  there  deliver  his  deed  to  his  vendee,  the 
seisin  in  such  case  passing  with  the  deed.^ 

*  81.  If  a  freehold  title  descends  to  one  as  heir,  the  [*36] 
law  invests  him  with  the  seisin  without  entry  upon  the 
land.^ 

82.  If  wild  or  vacant  lands  are  devised,  the  law  gives  the 
devisee  a  constructive  seisin,  and  he  may  maintain  a  writ  of 
entry  for  the  same.  But  if  they  are  otherwise  situate,  he 
must  make  an  entry,  or  do  some  equivalent  act  to  gain  a 
seisin.'^ 

83.  The  acts  necessary  to  create  a  seisin  in  a  grantee  of 
lands,  using  the  word  grant  in  its  broad  modern  signification, 

i  Brown  v.  King,  5  Met.  173. 

2  2  Prest.  Abs.  293  ;  Slater  v.  Eawson,  6  Met.  489 ;  Anon.  1  Salk.  246. 

8  Surry  v.  Pigott,  Poph.  170,  171. 

*  Hall  v..  Stevens,  9  Met.  418 ;  Clark  v.  McClure,  10  Gratt.  305. 

8  Proprietors  v.  Springer,  4  Mass.  416 ;  Stearns,  Real  Act.  44 ;  EUicott  v. 
Pearl,  10  Pet.  412;  Spaulding  v.  Warren,  25  Vt.  316 ;  Green  v.  Liter,  8  Cranch, 
247,  250;  Guterbock  Brae.,  by  Coxe,  90,  95. 

6  Brown  v.  Wood,  17  Mass.  68 ;  Green  v.  Chelsea,  24  Pick.  78. 

">  Jackson  v.  Howe,  14  Johns.  406;  Ward  v.  Fuller,  15  Pick.  185;  Brown  v. 
Wood,  17  Mass.  68;  Green  v.  Chelsea,  24  Pick.  78. 


60  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

are  genei'ally  prescribed  by  statute  in  this  country,  or  borrowed 
from  the  English  Statute  of  Uses.  Thus,  in  conveyances  by 
bargain  and  sale,  covenant  to  stand  seised,  and  lease  and  re- 
lease, forms  once  in  use  under  the  English  Law  of  Uses,  the 
statute  created  a  seisin  in  the  grantee  without  any  formal 
entry,  though  how  this  was  done  will  be  explained  in  connec- 
tion with  uses.^ 

84.  As  a  general  proposition,  by  the  law  in  this  country, 
the  making,  delivering,  and  recording  of  a  deed  of  land  passes 
the  seisin  thereof  without  any  formal  entry  being  necessary. 
This  is  generally  by  force  of  the  statutes  of  the  several  States  ; 
in  some,  such  a  deed  being  in  terms  declared  to  be  equivalent 
to  livery  of  seisin,  and  in  others  dispensing  with  any  further 
act  to  pass  a  full  and  complete  title.^ 

85.  It  is  somewhat  more  difficult  to  make  the  application 
of  the  doctrine  of  seisin  clear  when  it  is  considered  in  relation 
to  estates  of  which  present  possession  cannot  be  predicated. 
Thus  there  may  be  an  estate  for  years  in  one,  and  the  rever- 
sion or  remainder  in  fee  in  another,  or  an  estate  for  life  in  one 
with  a  reversion  or  remainder  in  fee  in  another;  and  the 
question  arises,  how  are  these  several  estates  affected  by  the 
matter  of  seisin,  since,  to  repeat,  every  freehold  must  have 
a  seisin,  and  there,  can  be  only  one  seisin  at  a  time  of  an 

estate. 
[*37]       *  86.  In  the  case  of  a  reversion  after  an  estate  for 

years,  there  would  be  no  difficulty,  since  the  one  who 
creates  the  lease  and  gives  the  tenant  possession  reserves  the 
rest  of  the  estate  to  himself,  and  with  it  the  seisin,  because, 
though  a  tenant  for  years  holds  the  possession,  he  cannot  hold 
the  seisin  of  lands.  In  such  case  the  tenant's  possession  is 
subordinate  to  the  right  of  the  reversioner,  and  does  not  dis- 
turb the  seisin  which  he  had  before  he  made  the  lease. 

87.  In  the  case  of  a  vested  remainder,  inasmuch  as  the  lease- 
hold estate  or  term,  and  the  remainder,  or  the  estate  after  its 
expiration,  are  created  at  one  and  the  same  time,  and  by  one 

1  See  2  Bl.  Cora.  237 ;  Welsh  v.  Foster,  12  Mass.  96 ;  Thacher  v.  Omans,  3 
Pick.  521 ;  4  Greenl.  Cruise,  45,  n. 

2  4  Greenl.  Cruise,  45,  n.  aud  47,  n. ;  Smith,  Land.  &  Ten.,  Am.  ed.,  6,  n, ; 
McKee  i;.  Pfout,  3  Dall.  489. 


CH.  II.]  FEUDAL   TENURES,   SEISIN,    ETC.  61 

and  the  same  act,  the  possession  given  to  the  lessee  or  termor 
enures  to  the  benefit  of  the  remainder-man,  under  whom  he 
is  henceforth  to  hold  his  estate,  the  lessor  and  grantor  having 
parted  with  his  entire  interest.  So  that  the  livery  of  pos- 
session to  the  lessee,  in  such  case,  operates  as  a  livery  of  seisin 
to  the  remainder-man,  and  vests  it  in  him,  the  lessee  being, 
as  it  were,  his  bailiff  to  accept  livery  for  him. 

88.  If  the  estate,  prior  to  the  reversion  or  remainder,  techni- 
cally called  the  particular  estate,  is  a  freehold,  or  one  for  life, 
the  seisin,  as  well  as  the  possession,  passes  to  and  stops  in  the 
tenant  of  the  freehold,  because  there  must  be  a  livery  of  seisin 
to  him  to  create  his  own  estate,  and  he  must  continue  to  hold 
the  seisin.  "  The  fee  is  intrusted  to  him."  In  such  case,  the 
livery  made  to  the  tenant  of  the  freehold  enures  to  the  benefit 
of  the  reversion  or  remainder,  and  passes  to  the  reversioner 
or  remainder- man  instantaneously  upon  the  determination  of 
the  particular  estate. 

89.  Such  would  be  the  case  if  there  were  ever  so  many 
practicable  successive  vested  estates  in  remainder,  the  seisin 
attaching  to  the  estate  of  each  as  it  successively  came  to  be 
entitled  to  the  possession. 

90.  In  all  these  cases,  whether  the  particular  estate  or  term 
be  for  years  or  for  life,  the  act  of  liver}^  of  seisin  is  done  to  the  one 
who  takes  the  first  estate  with  the  right  of  possession.^ 

*  91.  But  if  the  reversioner  or  remainder-man  wishes  [*38] 
to  dispose  of  his  interest  which  the  law  regards  an 
actual  estate,  though  to  be  enjoyed  in  future,  and  if  the  land 
itself  is  in  the  possession  of  the  tenant  for  years  or  for  life,  he 
obviously  cannot  make  an  actual  livery  of  seisin  to  his  grantee, 
because  to  do  so  he  must  enter  and  commit  a  trespass  upon 
the  lands.  And,  besides,  as  above  stated,  if  the  tenant  have 
a  freehold,  the  remainder-man  or  reversioner  has  no  seisin 
which  he  can  pass  to  a  third  person. 

92.  But,  inasmuch  as  he  has  the  seisin,  if  the  possession  be 
in  a  tenant  for  years,  he  may,  by  consent  of  the  latter,  enter 
upon  and  make  effectual  livery  of  seisin  of  the  land,  the 

1  1  Spence,Eq.  Jur.  156, 157;  2  Flint,  Real  Prop.  258,  259;  Id.  572;  1  Atkin. 
Bon,  Conv.  16 ;  Lit.  §  60 ;  Co.  Lit.  49 ;  1  Law  Mag.  274,  275 ;  Co.  Lit.  266  b, 
Butler's  note,  217;  2B1.  Com.  166. 


62  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

possession  of  the  tenant  thereafter  enuring,  so  far  as  the  seisin 
is  concerned,  to  the  benefit  of  the  grantee.^ 

93.  The  only  way,  therefore,  by  which  a  reversioner  or 
remainder-man  can  convey  his  estate,  if  it  be  expectant  upon 
an  estate  of  freehold  in  another,  or  upon  an  estate  for  years 
where  the  tenant  refuses  to  permit  livery  of  seisin  to  be  made, 
is  by  a  deed  of  grant  without  livery,  the  grantee  being  thereby 
substituted  in  respect  to  the  estate  to  all  the  rights,  includ- 
ing the  enuring  of  the  benefiit  of  seisin  which  belonged  to  his 
grantor.2 

94.  This  may  serve  to  explain  the  expressions  "  seisin  in 
law  of  a  reversion  or  remainder,"  "  seised  in  possession,"  and 
"  seised  in  reversion  or  remainder,"  as  well  as  "  vested  in 
reversion  or  remainder,"  which  are  found  in  books  treating 
of  this  subject.^  And  without  adverting  to  what  constituted, 
in  the  ancient  law,  a  seisin  in  law,  as  contradistinguished 
from  a  seisin  in  deed,  it  is  sufficient  to  say  that  for  centuries 
the  language  of  the  law  has  been  that  a  reversioner  is  "  seised  " 
of  the  reversion,  although  dependent  upon  an  estate  for  life. 
By  this,  no  more  is  meant  than  that  he  has  a  fixed,  vested 
right  of  future  enjoyment  of  it.* 

95.  This  results  from  the  rule  of  law,  that  where  lands  of 
inheritance  are  carved  into  different  estates,  the  tenant  of  the 
fi-eehold  in  possession  and  the  persons  in  remainder  or  rever- 
sion, are  equally  in  the  seisin  of  the  fee,  except  that  the 
tenant  in  possession  has  the  actual  seisin  of  the  lands.^ 

96.  F'or  the  reasons  already  stated,  if  from  any  cause  one 

should  lose  his  seisin  of  land,  he  could  not,  at  common 
[*39]  law,  convey  *  the  freehold  thereof,  his  deed  would  be 
void  if  made  before  he  regained  it.^ 

97.  Nor  by  the  theory  of  the  common  law  could  the  seisin 
be  in  abeyance  or  suspense ;  it  must  always  be  in  some  one 
as  freeholder,  because  of  the  feudal  maxim  that  the  freehold 

1  1  Atkinson,  Conr.  16  ;  2  Flint,  Real  Prop.  572  ;  Co.  Lit.  48  b,  n.  318 ;  Id.  16  a. 

2  1  Atkinson,  Conv.  16;  2  Flint,  Real  Prop.  676;  2  Prest.  Abs.  283;  Wms. 
Eeal  Prop.  208. 

3  2  Prest.  Abs.  282. 

4  Cook  V.  Hammond,  4  Mason,  488  ;  Plowd.  191. 

*  Co. Lit.  266  b,  Butler's  note,  217;  "Van  Rensselaeru.  Kearney,  11  How.  319. 
6  Small  V.  Proctor,  16  Mass.  495 ;  4  Dane's  Abr.  16. 


CH.  II.]  FEUDAL   TENURES,   SEISIN,   ETC.  63 

must  always  be  full,  in  order  that  there  should  be  some  one 
always  ready  to  do  the  services  of  the  tenure,  and  to  answer 
to  any  action  of  law  which  any  claimant  of  the  lands  might 
bring  to  try  the  title  to  the  same.^  If  one  is  wrongfully 
deprived  of  his  seisin,  it  is  technically  called  a  disseisin,  the 
one  who  does  the  act  being  a  disseisor,  and  the  one  who 
thereby  loses  the  seisin,  a  disseisee.  But  how  this  may  be 
done,  and  the  consequences  upon  the  rights  of  the  parties, 
come  more  properly  into  consideration  when  treating  of  the 
modes  of  acquiring  titles  to  lands. 

98.  This  subject  would  be  manifestly  incomplete  in  a  work 
professing  to  be  American  in  its  character,  without  something 
being  said  of  tenure  as  an  incident  to  the  ownership  of  lands 
in  this  country.  And  although,  in  the  opinion  of  Judge  Kent, 
"  the  question  has  become  wholly  immaterial  in  this  country, 
where  every  real  vestige  of  tenure  is  annihilated  "  (4th  Com. 
25),  it  cannot  but  be  regarded  as  an  interesting  subject  of  in- 
quiry as  a  matter  of  legal  history,  if  nothing  more.  The  nature 
of  the  title  of  the  crown  to  the  lands  of  this  country  in  the  pos- 
session of  the  Indian  tribes,  and  in  whom  the  seisin  was  before 
the  extinguishment  of  their  possessory  right,  have  come  up  for 
discussion  in  several  cases  to  which  the  reader  is  referred.^ 
The  grant  of  lands  by  the  crown  to  the  early  colonies,  pre- 
scribed as  the  tenure  by  which  they  were  to  be  held  of  the 
crown,  "  free  and  common  socage  and  not  in  capite  by  knight- 
service."  ^  In  some  of  the  charters,  at  least,  there  was  a  reser- 
vation in  the  nature  of  rent  of  a  certain  part  of  the 
gold  and  *  silver  ore  that  should  be  found  in  the  ter-  [*40] 
ritory  granted.^  When  these  lands  were  again  granted 
out  to  actual  settlers,  they,  as  grantees,  by  virtue  of  the 
statute    Quia  Umptores,  would  hold,  it  is  to  be  supposed, 

1  1  Atkinson,  Conv.  11 ;  1  Prest.  Est.  255.  The  latter  was  technically  called 
the  "  tenant  to  the  Praecipe."    1  Prest.  Est.  208. 

2  Clark  V.  Williams,  19  Pick.  499;  Brown  v.  Wenham,  10  Met.  495;  Martin 
V.  Waddell,  16  Pet.  409 ;  Fellows  v.  Lee,  6  Denio,  628 ;  Johnson  v.  Mcintosh,  8 
Wheat.  543;  Worcester  v.  Georgia,  6  Pet.  515;  Commonwealth  v.  Roxbury,  9 
Gray,  481,  482. 

3  Wms.  Real  Prop.  6,  n. ;  2  Sharsw.  Bl.  Cora.  77;  1  Story,  Cons.  159 ;  SuUiv. 
Land  Tit.  35. 

*  1  Story,  Cons.  47. 


64  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

directly  of  the  king,  the  lord  paramount.  But,  as  has  before 
been  shown,  the  holding  by  common  socage  in  fee  did  not 
imply  the  necessary  payment  of  any  of  the  feudal  services, 
except  fealty.  If  Massachusetts  may  be  taken  by  way  of 
illustration,  the  charter  from  the  king  not  only  passed  the 
property  in  the  lands  in  the  colony,  but  the  right  of  framing 
a  government  over  the  territory.  And  to  the  grants  and  acts 
of  that  government  all  titles  to  real  property  in  Massachusetts, 
with  their  incidents  and  qualifications,  are  to  be  traced  as 
their  source.^  In  the  case  of  Chisholm  v.  Georgia,  Ch.  J.  Jay 
says  :  "  Every  acre  of  land  in  this  country  was  then  (prior  to 
the  Revolution)  held  mediately  or  immediately  by  grants 
from  the  crown."  And  he  adds :  "  From  the  crown  of  Great 
Britain  the  sovereignty  of  their  country  passed  to  the  people 
of  it."  ^  Great  Britain  relinquished  all  claim  not  only  to  the 
government  but  to  the  proprietary  and  territorial  rights  of  the 
United  States.  And  these  vested  in  the  several  States  within 
which  they  were  situate.^  It  is  difficult,  in  view  of  these  now 
familiar  principles,  and  of  the  fact  that  each  State  was  indepen- 
dent, by  the  Revolution  and  the  treaty  of  peace,  in  its  dominion 
over  its  own  territory,  to  see  when  and  how  the  feudal  tenure 
by  which  the  lands  had  been  indirectly  held  of  the  crown  was 
transferred  to  the  State.  The  State  was  substantially  these 
very  land-owners  acting  as  a  corporate  body.  Nor,  it  is 
believed,  did  the  States  or  either  of  them  assert  the  claim  of 
tenure  or  fealty.  On  the  contrary.  New  York,  New  Jersey, 
South  Carolina,  and  Michigan,  expressly  negative  the  existence 
of  tenure.*  No  guardianship  in  socage  has  existed  in  New  York 
since  1776,  of  lands  granted  by  the  State.^  And  it  is  now 
held  that  the  duty  of  allegiance,  the  only  duty  now  owed  to 
the  State,  is  common  to  everj^  citizen,  and  has  no  connection 

1  Commonwealth  v.  Charlestown,  1  Pick.  180 ;  Commonwealth  v.  Alger,  7  Cush. 
68,  71,  82. 

2  Chisholm  v.  Georgia,  2  Dall.  470. 

3  Commonwealth  v.  Alger,  7  Cush.  82,93;  Martin  v.  Waddell,  16  Pet.  410; 
Johnson  i\  Mcintosh,  8  Wheat.  584. 

4  Smith,  Land.  &  Ten.,  Am.  ed.,  6,  n. ;  N.  Y.  Rev.  Stat.,  4th  ed.,  vol.  2,  p.  125, 
and  Rev.  Laws,  p.  70,  §  2-6  ;  Cornell  v.  Lamb,  2  Cow.  652 ;  Van  Rensselaer  v. 
Hayes,  19  N.  Y.  91,  92 ;  1  Rev.  Stat.  718,  §  3. 

*  Coombs  V.  Jackson,  2  Wend.  155. 


CH.  II.]  FEUDAL   TENURES,   SEISIN,    ETC.  65 

with  the  land.  "  He  no  more  holds  his  land  by  that  tenure 
than  he  does  his  horse."  ^  And  where  a  grantor  grants  an 
estate  in  fee,  no  reversion  or  possible  reversion  by  escheat  or 
otherwise  remains  in  the  grantor.  No  implied  feudal  conditions 
remain,  although  conditions  made  expressly  by  the  parties  will 
be  enforced.^  Connecticut,  in  1793,  declared  every  pro- 
prietor in  fee-simple  of  land  to  have  *  an  absolute  and  [*41] 
direct  dominion  and  property  in  it.^  Service  and  feudal 
tenures  were  abolished  in  Virginia  in  1779.*  And  the  courts 
of  Pennsylvania  and  Maryland  have  declared  their  lands  to  be 
allodial,  tenure  and  service  having  no  existence  since  the 
Revolution.^  Wisconsin,  by  her  constitution,  declared  all  land 
within  the  State  allodial.^  Judge  Cooper,  in  his  notes  upon 
Justinian's  Institutes,  says :  "  Our  (Pennsylvania)  tenure 
being  free  of  any  suit  or  service  but  what  the  State,  that  is 
the  great  mass  of  the  citizens,  imposes  by  common  consent, 
seems  to  be  allodial"  (p.  455).  A  writer  in  the  American 
Jurist,  in  speaking  of  the  north-western  Territory  covered  by 
the  Ordinance  of  1787,  says  :  "  The  doctrines  of  tenure  do  not 
here  exist  even  in  theory  "  (vol.  11,  p.  94).  And  Judge 
Story  says :  "  Strictly  speaking,  therefore,  there  has  never 
been  in  this  country  a  dependent  peasantry.  The  yeomanry 
are  absolute  owners  of  the  soil."  "^  It  is  nevertheless  true  that 
every  man  holds  his  estate,  however  absolute  his  property 
therein,  subject  not  only  to  the  right  of  eminent  domain,  but 
to  the  right  of  the  government  to  control  the  use  of  it  by  such 
rules  and  limitations  as  the  public  good  requires  ;  ^  though  it 
is  apprehended  this  is  not  a  feudal  burden  in  its  character. 
Yet  writers  of  high  authority  maintain  that,  theoretically  at 
least,  there  is  a  tenure  in^  this  country  whereby  every   man 

1  Van  Rensellaer  v.  Smith,  27  Barb.  157. 

2  Van  Rensellaer  v.  Dennison,  35  N.  Y.  400.        3  Rev.  Laws,  1849,  p.  454. 
<  Acts  of  Virginia,  1785. 

6  Desilver's  Estate,  5  Rawle,  111-113;  Matthews  v.  Ward,  10  Gill  &  J.  448; 
New  Orleans  v.  United  States,  10  Peters,  717 ;  Cooper,  Just,  note  455. 

6  Rev.  Stat.  Wis.  1849,  art.  1,  §  14. 

T  1  Story,  Cons.  160;  Cook  v.  Hammond,  4  Mason,  478;  Stearns,  R.  A.  61. 

8  Commonwealth  v.  Alger,  7  Cush.  92-102,  where  this  point  is  illustrated  and 
explained.  Taylor  v.  Porter,  4  HiU,  143  ;  Commonwealth  v.  Tewksbury,  11  Met. 
57  ;  People  v.  Salem,  20  Mich.  479-482,  per  Cooley,  J. 

VOL.   I.  6 


66  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

holds  his  Lands  of  the  State,  as  they  did  before  the  Revolution 
of  the  crown,  and  among  these  is  Judge  Sharswood  of  Phila- 
delphia, who  finds  evidence  of  this,  among  other  things,  in  the 
forms  of  conveyances  made  use  of  here.  And  Judge  Jones, 
of  the  same  State,  holds  that  fealty  is  still  a  service,  and  es- 
cheat a  perquisite  of  a  feudal  character.  And  the  annotator, 
Mr.  Morris,  upon  Smith's  Landlord  and  Tenant,^  says :  "  It 
would  not  be  safe  to  assert  that  any  property  is  allodial."  But 
Mr.  Pomeroy  says,  that  all  lands  in  America  are  allodial, 
except  the  few  manor  lands  in  New  York.^  And  the  point 
seems  to  have  been  fully  settled,  so  far  as  Pennsylvania  is 
concerned.  Her  courts  now  hold  that  the  estates  in  that  State 
are  allodial  and  not  feudal,  that  escheat  is  a  mere  feudal  name 
for  a  statute  incident,  allegiance  is  merely  what  is  due  fi'om 
the  citizen  to  the  government,  and  the  State  is  lord  paramount 
as  to  no  man's  land.^  And  in  New  Jersey  and  South  Caro- 
lina, free  and  common  socage  is  declared  to  exist  by  express 
statute.*  It  is  undoubtedly  true,  as  has  already  been  said,  that 
many  of  the  principles  of  our  law  of  real  estate,  including  its 

forms  of  conveyance,  as  w^ell  as  many  of  the  terms 
[*42]   *  in  use  in  applying  these,  were  borrowed   originally 

from  the  feudal  system.  It  is  because  this  is  the  case, 
and  because  they  could  not  be  so  intelligibly  applied  as  was 
desirable  without  a  brief  outline  of  this  system  and  its  opera- 
tion, that  so  much  space  has  been  assigned  to  it  in  this  work. 
But  it  is  apprehended  that  the  adoption  of  forms  of  expression 
or  forms  of  process  borrowed  from  a  once  existing  system  of 
laws,  does  not  necessarily  impl}-  that  that  s^^stem  has  not  be- 
come obsolete.  Even  the  doctrine  of  allegiance,  which  is  said 
to  be  but  fealty  to  the  State,  there  is  good  authority  for  say- 
ing, "  is  a  service  from  every  subject  to  the  crown  or  state 
irrespective  of  any  land  tenure  thereby  manifested  or  main- 
tained." ^     And  this  chapter  cannot,  perhaps,  be  more  suita- 

1  Smith,  Land.  &  Ten.,  Morris's  ed,  6,  n. ;  2  Sharsw.  Bl.  Com.  77,  n. 

2  Introd.  272. 

3  Wallace  v.  Harmstad,  44  Penn.  St.  500. 

*  S.  C.  Rev.  Stat.  671 ;  Nixon,  Dig.  129  ;  Stat.  New  Jersey,  1795.  See  Arrow- 
emith  V.  Burlington,  4  M'Lean,  497. 

*  1  Hale,  P.  C.  62;  Termes  de  Ley,  "Allegiance." 


CH.  II.]  FEUDAL   TENURES,    SEISIN,   ETC.  67 

bly  closed,  in  view  of  the  various  topics  embraced  in  it,  than 
by  adopting  the  language  of  Judge  Kent :  "  Thus,  by  one  of 
those  singular  revolutions  incident  to  human  affairs,  allodial 
estates  once  universal  in  Europe,  and  then  almost  universally 
exchanged  for  feudal  tenures,  have  now,  after  the  lapse  of 
many  centuries,  regained  their  primitive  estimation  in  the 
minds  of  freemen."  ^  There  is  a  class  of  tenures  which  exist 
between  landlord  and  tenant,  reversioner  and  tenant  for  life 
or  dower  and  tenant  in  tail,  reversioner  and  tenant  in  dower 
or  curtesy,  and  the  like.  These  are  recognized  as  fully  in 
this  country  as  in  England.  But  they  do  not  properly  come 
within  the  idea  of  feudal  tenures,  though  indirectly  derived 
from  them.2  And  the  same  remark  ajjplies  to  the  relation  of 
grantor,  owner  in  fee-simple,  to  grantee  in  tail,  the  latter 
estate  being  carved  out  of  the  former  ;  the  grantee  is  consid- 
ered as  holding  of  his  grantor,  who  has  a  reversionary  interest 
remaining  in  him.  And  if,  in  such  case,  the  grantor  grant 
away  his  reversion,  the  tenant  in  tail  or  for  life  will  hold  of 
the  grantee  of  the  reversion,  notwithstanding  the  statute  of 
Quia  Umptores,  because  that  statute  only  applies  to  cases  where 
the  grantor  parts  with  his  entire  estate.^ 

^  3  Kent,  Com.  513.  If  there  are  instances  of  manorial  rights  and  services  in 
New  York,  or  any  other  of  the  States,  they  are  so  far  local  as  not  to  affect  the 
general  course  of  tlie  ahove  remark. 

2  Smith,  Land.  &  Ten.,  6-8.  '  1  Cruise,  Dig.  72. 


68 


LAW   OF   REAL   PROPERTY. 


[book  I. 


CHAPTER   III. 
ESTATES  IN  FEE-SIMPLE. 

1.  Distinction  between  property  and  title. 

2,  3.  Property  in  tlie  realty  defined. 

4-6.  Title  explained. 

7,  8.  Estate  defined. 

9-11.  Division  and  characteristics  of  estates. 

12-15.  Freeholds  defined,  and  how  created. 

16-19.  Cannot  be  in  abeyance,  except  by  act  of  law. 

20,  21.  Relation  and  duty  of  freeholders  to  the  estate. 

22-28.  "Who  may  be  freeholders,  —  aliens,  corporations. 

29.  Division  of  estates. 

80-34.  Fee-simple  defined,  —  its  incidents. 

35,  86.  Fees  defeasible. 

37-44.  Alienation  incident  to  estates  in  fee,  —  its  history. 

45-47.  How  far  alienation  may  be  restricted. 

48-50.  Power  of  devising  lands  in  fee,  —  its  history. 

51,  52.  Fee  in  incorporeal  hereditaments. 

53-63.  "  Heirs,"  how  far  necessary  to  create  a  fee-simple  by  deed. 

64-69.  Fee-simple,  how  created  by  devise. 

71,  72.  Curtesy,  dower,  and  descent,  incident  to  fee-simple. 

73,  74.  Such  estates  subject  to  debts. 

75-77.  Of  estates  limited  after  fees  determinable. 

78-80.  Base  and  determinable  fees. 

81.  Conditional  limitations. 

82.  Conditional  fees  at  common  law. 

83-85.  Determinable  fees,  —  what  are  and  what  are  not. 

86.  Tenant  of  such  fee  has  the  rights  of  one  in  fee-simple. 

87,  88.  Determinable  fee  with  or  without  a  reversion. 

89,  90.  Such  estates  descend  as  fees,  are  defeasible  by  condition. 
91-93.     Such  estates  may  become  fee-simple  absolute. 


1.  As  the  law  of  real  property  naturally  divides  itself  into 
different  heads,  it  is  well  to  classify  and  fix  these  as  distinctly 

as  may  be,  in  order,  if  possible,  to  have  them  presented 
[*44]  in  their  *  natural  order.     There  is,  then,  a  property  or 

interest  in  lands  or  other  things  coming  within  the 
class  of  realty,  which  is  something  distinct  from  the  title  by 
which  it  is  held,  or  the  mode  by  which  it  is  acquired.^ 

1  See,  upon  this  subject,  Maine,  Anc.  L.  290  et  seq. 


CH.  III.]  ESTATES   IN   FEE-SIMPLE.  69 

2.  li  is,  in  its  very  nature,  abstract,  being  predicated  alike 
of  what  is  corporeal  and  incorporeal,  and  independent  of  pos- 
session or  actual  enjoyment.  It  is  capable,  moreover,  of  as- 
suming various  forms  and  of  existing  under  such  different 
relations  as  often  to  give  rise  to  complex  rules  and  subtle  and 
refined  distinctions,  which  it  becomes  the  business  of  a  lawyer 
to  detect  and  explain.^ 

3.  A  man  may  be  the  sole  owner  of  an  acre  of  land  as  his 
absolute  property,  subject  to  his  right  of  using,  abusing,  or 
doing  what  he  will  with  it,  without  any  present  or  future 
right  in  another  to  exercise  any  control  over  it.  Or  he  may 
have  a  right  to  a  temporary  use  and  enjoyment  of  it,  while 
another  may  have  a  right  to  it  after  a  term  of  years  or  after 
the  death  of  some  one.  Or  he  may  simply  have  a  right  to 
have  the  land  and  the  full  possession  and  occupation  thereof 
at  some  future  period,  certain  or  uncertain.  Or  he  may  have 
the  possibility  of  owning  it  and  enjoying  it  if  a  certain  contin- 
gent event  shall  happen  ;  or  he  may  be  liable  to  lose  the  pres- 
ent enjoyment  of  it  if  such  event  occurs,  and  the  like.  And 
these  are  but  a  few  of  the  different  forms  in  which  property  in 
or  ownership  of  what  is  called  realty  may  present  itself  to 
the  mind.^ 

4.  And  this,  it  will  be  readily  perceived  as  already  remarked, 
is  sometliing  distinct  from  the  title  by  which  such  property  is 
held,  or  the  mode  in  which  it  may  be  acquired.     A  man  may 

1  For  the  doctrine  of  property  in  running  waters,  see  post,  vol.  2,  p.  *  64  et  seq. 
Embrey  v.  Owen,  6  Exch.  368 ;  Mason  v.  Hill,  5  Barn.  &  Ad.  1,  25 ;  Wood  v. 
Waud,  3  Exch.  775  ;  Washb.  Ease.  207,  213,  307. 

2  Among  the  attempts  to  define  wliat  tliis  property  is,  and  in  what  it  consists, 
the  following  may  serve  as  an  example :  The  civil  code  of  Louisiana,  §  480,  de- 
fines ownership  {la  propriety)  to  be  "the  right  by  which  a  thing  belongs  to  some 
one  in  exclusion  of  all  other  persons."  In  West's  Symboliography,  printed  in 
1622,  §  31,  it  is  said,  "An  estate,  status,  dominium,  proprietas,  is  that  right  and 
power  whereby  we  have  the  property  or  possession  of  things,  that  is,  whereby 
we  be  owners  or  possessors  thereof."  See  Code  Nap.  §  544.  A  writer  in  2 
Bench  and  Bar,  n.  s.  251,  illustrates  the  difference  in  the  habits  and  customs  of 
the  English  and  French  in  the  matter  of  holding  lands  in  fee,  and  as  tenants  of  a 
landlord,  by  the  respective  numbers  of  land-owners  in  the  two  countries,  as  given 
in  the  census  of  1861.  In  England  it  was  30,766,  in  France  3,799,759,  who  culti- 
vate their  own  land.  There  were  in  France  5,000,000  smnll  rural  proprietors, 
8,000,000  of  these  owning  about  two  acres  each,  and  2,000,000  about  thirteen 
acres  ;  50,000  were  proprietors  of  five  hundred  acres  each. 


70  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

be  regarded  as  the  absolute  owner  of  a  farm,  but  that  does 
not  indicate  how  he  acquired  it,  or  what  the  nature  of  his 
title  to  it  is.  He  ma}'-  have  obtained  it  by  a  deed  of  grant 
from  a  former  owner,  by  his  last  will  and  testament,  or  by 
inheriting  it  as  his  heir  ;  or  he  may  have  entered  upon  it  with- 
out any  right,  and  held  it  long  enough  to  give  him  a  valid 
legal  title  to  it.^ 

5.  The  division  of  the  subject  therefore  is  into,  1st,  the  na- 
ture and  extent  of  the  property  or  interest  which  one  may 
have  in  lands  or  the  realty ;  and  2d,  the  title  by  which  that 

property  is  acquired  and  held. 
[*45]  *  6.  To  treat  of  these  in  their  order,  it  may  be  well, 
first,  to  consider  property  in  reference  to  its  duration 
or  extent  as  to  time ;  second,  in  reference  to  the  circum- 
stances under  which  it  may  be  held  and  enjoyed,  whether  in 
severalty  or  in  connection  with  others  and  the  like ;  third,  in 
reference  to  its  being  absolute  or  conditional  ;  fourth,  in  refer- 
ence to  its  being  the  subject  of  present  or  future  enjoyment,  of 
possession  or  expectancy  ;  and  lastly,  in  reference  to  its  being 
regarded  as  legal  or  equitable  in  its  character,  that  is,  fixed 
and  regulated  by  the  rules  of  the  common  law  or  by  those  of 
equity. 

7.  The  property  or  interest  which  one  has  in  lands,  tene- 
ments, or  hereditaments,  is  expressed  by  the  word  estate. 
And  the  extent  or  degree  of  this  interest  is  indicated  by  the 
terms  by  which  different  estates  are  designated.  Thus  an 
estate  in  fee-simple  convej^s  at  once  the  idea  of  an  interest 
of  an  unlimited  duration,  without  any  words  of  explanation. 
It  is  called  estate,  from  status,  signifying  the  condition  or 
circumstances  in  which  the  owner  stands  with  regard  to  his 
property  .2 

8.  In  popular,  and  often  even  legal,  use  of  the  word  estate, 
the  thing  itself,  rather  than  the  interest  in  it,  is  understood. 
"  Still,  the  word  in  its  properest  sense,  imports  the  interest."  ^ 

'  See  post,  vol.  2,  p.  *  398. 

2  2  Bl.  Com.  103;  Co.  Lit.  345  a;  Burton,  Real  Prop.  §  12.  It  is  said  by  Lord 
Holt,  "  Estate  comes  from  s^anc/o,  because  it  is  fixed  and  permanent."  Bridge- 
water  V.  Bolton,  6  Mod.  109.     Co.  Lit.  9  a. 

8  Id. 


CH.  III.]  ESTATES   IN    FEE-SIMPLE.  71 

This  is  SO  where  "  real  estate  "  is  spoken  of.     It  is  used  as 
synonymous  with  lands  and  tenements.^ 

9.  The  first  division  of  estates  is  into  those  of  freehold  and 
those  less  than  freehold,  which  was  partially  considered  in 
connection  with  the  subject  of  tenure. 

10.  These  estates  of  freehold  are  again  divided  into  those 
of  inheritance  and  those  not  of  inheritance.  All  estates  of 
inheritance  in  tenements  are  freehold,  but  the  converse  of  the 
proposition  is  not  true,  since  freeholds  embrace  estates  for  life 
and  those  of  indefinite  duration,  which  may  endure  for  a  life. 
And  now,  in  ordinary  use,  without  explanatory  words,  the 
term  "  freehold  "  would  be  understood  as  denoting  an  estate 
for  life  as  distinguished  from  an  estate  of  inheritance,  or  one 
that  goes  to  the  owner's  heirs  at  his  death.^ 

*  11.  Estates  less  than  of  freeliold,  such  as  estates  [*46] 
for  years,  are  called  chattel  interests  or  estates  ;  if  they 
continue  for  a  longer  period  than  the  life  of  the  te  ant,  they 
go  like  chattels  to  his  personal  representatives,  his  executor 
or  administrator.^ 

12.  A  freehold  answers  to  the  liberum  tenementum  or  frank 
tenement  of  Bracton  and  the  early  writers  upon  the  law,  which 
implied  an  estate  which  could  be  created  only  by  livery  of 
seisin,'^  and  one  which  a  freeman  might  consistently  hold  in 
reference  to  its  tenure,  and,  of  course,  excluded  all  lands  held 
in  villeinage,  even  though  held  for  the  term  of  a  life.^  The 
term,  moreover,  is  used  in  two  senses  ;  first,  as  indicating  the 
quantity  of  interest,  and  second,  the  quality  of  the  tenure.^ 

13.  And  although  no  estate  of  freehold  could  be  created 
without  livery  of  seisin,  and  of  which  livery  might  be  predi- 
cated, including  reversionary  interests  as  well  as  those  in  pos- 
session,'^ and  though  under  the  feudal  law  a  freeholder  was 
one  of  the  pares  curios,  and  at  common  law  might  be  a  juror^ 

1  Carpenter  v.  Millard,  38  Vt.  16 ;  ante,  p.  *  3 ;  JohnsoQ  v.  Richardson,  33 
Miss.  464. 

2  Co.  Lit.  266  b,  n.  217 ;  1  Law  Mag.  551;  Burton,  Real  Prop.  §  17  ;  1  Prest. 
Est.  203. 

3  Burton,  Real  Prop.  §  1;  1  Prest.  Est.  203. 

*  2  Bl.  Com.  104  ;  1  Prest.  Est.  209. 

6  1  Prest.  Est.  209 ;  Id.  213  ;  Wms.  Real  Prop.  22. 

6  2  Woodd.  Lect.  5.  ^  2  Prest.  Abs.  282 ;  2  Bl.  Com.  104. 


72  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

and  in  the  end  become  entitled  to  vote  for  members  of  Parlia- 
ment for  the  county ;  ^  yet,  in  view  of  the  doctrine  of  uses 
having  done  away  with  actual  livery  of  seisin,  the  proper 
definition  of  the  term  seems  to  be  "  an  estate  of  inheritance  or 
for  life  in  real  property ,  whether  it  be  a  corporeal  or  incorpo- 
real hereditament."  ^ 

14.  Yet,  when  speaking  of  an  estate  in  reversion,  though  it 
is  what  is  called  a  vested  one,  the  owner  is  said  to  be  entitled 
to,  and  not  to  be  seised  of  such  estate,*  unless  it  be  expectant 
upon  a  term  of  years,  in  which  case  the  possession  of  the  ter- 
mor is  the  possession  of  the  reversioner  or  remainder-man, 
who  has  the  seisin  accordingly.* 

15.  There  may  be  a  seisin  of  a  reversion  or  remain- 

[*47]  der  *  expectant  upon  a  freehold  estate,  in  the  manner 

and  for  the  reasons  explained  in  the  previous  chapter.^ 

16.  It  will  be  sufficient  to  repeat  that,  for  reasons  which 
must  be  obvious  from  what  has  gone  before,  a  first  and  im- 
mediate estate  of  freehold  cannot  be  put  in  abeyance^  by  the 
act  of  the  owner,  that  is,  waiting  for  any  event,  however  near, 
or  the  lapse  of  time,  however  short.^  This  embraces  the  prop- 
osition that  a  freehold  cannot  be  created  by  deed  to  commence 
in  future.  And  among  the  illustrations  that  might  serve  to 
explain  this,  would  be  a  conveyance  of  a  freehold  to  a  person 
unborn  or  unascertained.  It  would  be  void.'^  But  this  does 
not  aj)ply  to  cases  of  remainders,  or  estates  in  reversion.  A 
reversion  is  of  course  an  estate  in  expectancy,  after  the  ex- 
piration of  an  intermediate  estate,  and  a  remainder  is  not  only 
an  estate  in  expectancy,  but  it  may  be  ever  so  contingent  and 
uncertain,  and  be  good,  if,  until  the  contingency  is  determined 
so  as  to  have  it  vest  or  fail  altogether,  there  be  an  intermediate 
estate  of  freehold  in  some  third  person.^  And  where  one 
holdino;  a  freehold  in  reversion  convevs  it  in  terms,  from  the 
expiration  of  the  intermediate  estate,  courts  will  construe  it  a 

1  1  Prest.  Est.  207. 

2  2  Bl.  Com.  104,  Christian's  note ;  1  Law  Mag.  555. 

3  2  Cruise,  Dig.  386.  But  quaere,  see  Plowd.  191 :  "  A  man  may  say  of  a  re- 
version expectant  upon  an  estate  for  life,  that  he  was  seised  as  of  fee." 

*  Co.  Lit.  15  a  ;  Plowd.  191.  ^  Plowd,  191;   4  Kent,  Com.  386. 

6  1  Prest.  Est.  216  ;  Id.  250.  '  1  Prest.  Est.  220. 

'  1  Atkinson,  Conv.  11. 


CH.  III.]  ESTATES   IN   FEE-SIMPLE. 

present  conveyance  of  a  present  freehold,  the  enjo5Tnent  oi 
which  is  postponed  till  the  expiration  of  the  prior  estate.^ 

17.  So  a  freehold  must  be  continuous.  If  limited  ^  to  A 
every  Mondaj^,  B  every  Tuesday,  and  so  on,  it  would  be  void. 
And  one  reason  for  this,  among  others,  is,  that  there  could  be 
no  tenant  to  the  prcecipe  as  heretofore  explained  ^  to  answer 
to  and  defend  suits  for  the  recovery  of  the  land ;  the  party 
proper  to  be  sued  to-day  would  cease  to  be  the  one  to  defend 
to-morrow.4 

*18.  The  abeyance  into  which  a  glebe  or  parsonage  [*48] 
land  is  put  by  the  death  of  the  incumbent,  is  deemed 
to  be  an  act  of  the  law,  and  the  freehold,  though  suspended 
during  a  vacancy  in  the   office,  revives  in  favor  of  his  suc- 
cessor.^ 

19.  But  a  freehold  cannot  be  put  in  abeyance  by  the  act  of 
the  party,  for  reasons  stated  in  a  former  chapter.^ 

20.  It  was  a  part  of  the  freeholder's  duty  at  common  law, 
as  more  tlian  once  expressed,  to  defend  the  estate  against 
claims  which  a  stranger  might  make  upon  it.  And  if  a 
tenant  of  a  less  estate  than  a  freehold  was  disturbed  by  one 
claiming  the  land,  he  depended  upon  him  who  had  the  imme- 
diate freehold  to  protect  and  maintain  his  interest,  and  might, 
to  this  end,  "pray  the  aid"  of  him  who  had  the  title,  to  de- 
fend suits  brought  to  recover  the  land.  So  where  the  tenant, 
of  whom  the  inheritance  was  demanded,  was  himself  a  mere 
freeholder,  he  had  a  right  to  pray  aid  from  the  reversioner  or 
remainder-man,  and  bring  him  forward  to  defend  the  title." 
As  the  prcecipe  was  a  process  to  recover  a  freehold,  no  one 
having  a  less  estate  could  defend  against  it,  and  therefore 
none  other  could,  in  the  language  of  the  law,  be  "  tenant  to 
\h&  prcecipe  y  ^     "The  law  will  rather  give  the  land  to  the 

1  1  Law  Mag.  555,  cites  "Weale  v.  Lower,  PoUexf.  66 ;  1  Prest.  Est.  225. 

2  This  term  lias  a  technical  meaning,  implying  not  only  the  conveying  of 
lands,  but  the  fixing  of  the  limits  or  extent  of  the  interest  conveyed,  as  limiting 
lands  to  A  B  for  life,  and  the  like.  •*  Ante,  p.  *39. 

*  1  Prest.  Est.  218;  Id.  252,  253  ;  1  Law  Mag.  561. 

6  1  Prest.  Est.  217  ;  Terrettv.  Taylor,  9  Cranch,47  ;  Weston  u.  Hunt,  2  Mass. 
500.  6  Ante,  p.  *39  ;  1  Prest.  Est.  216 ;  1  Law  Mag.  557. 

7  1  Prest.  Est.  207. 

8  1  Prest.  Est.  206-208 ;  Stearns,  Real  Act.  100-102 ;  Termes  de  Ley,  "  Aid." 
See  post,  p.  *95. 


74  LAW   OP   REAL   PROPERTY.  [BOOK   1. 

first  comer,  which  we  call  an  occupant,  than  want  a  tenant 
to  a  demandant's  action."  ^ 

21.  The  tenant  for  life  was  intrusted  with  the  protection 
of  the  possession  for  the  benefit  of  the  remainder-man  in  fee. 
And  a  judgment  against  him  on  demand  of  right  and  inherit- 
ance, was,  in  effect,  a  judgment  against  him  in  reversion  or 
remainder,  and  took  away  the  seisin  from  them,  rendering  it 
necessary  that  they  should  become  demandants  instead  of  be- 
ing defendants  of  the  right.^ 

22.  As  to  who  may  be  freeholders,  there  is  no  exception  in 
this  country,  beyond  the  disability  in  some  States  arising 
from  alienage.  By  the  common  law,  the  chief  difficulty,  in 
this  respect,  is  in  acquiring  title  rather  than  in  holding  the 
estate  when  acquired.  Thus  an  alien  may  purchase  lands 
and  hold  them  against  all  the  world  but  the  State.  Nor  can 
he  be  divested  of  his  estate,  even  by  the  State,  until  after  a 

formal  proceeding  called   "office  found;"    and,  until 
[*49]  that  is  done,  may  *  sell  and  convey  or  devise  the  lands, 
and  pass  a  good  title  to  the  same.^ 

23.  But  an  alien  cannot  take  lands  by  descent,  nor  transmit 
them  to  others  as  his  heirs  by  the  common  law.^ 

24.  And  in  Massachusetts,  upon  the  death  of  an  alien  intes- 
tate, his  lands  formerly  vested  at  once  in  the  commonwealth 
without  office  found.^ 

25.  But  if  the  alien  purchase  of  the  State,  with  covenants 
of  warranty,  the  latter  cannot  claim  the  land  of  the  alien  nor 
of  his  heirs.^  But  the  disability  of  alienage  is  removed,  in 
whole  or  in  part,  in  most  of  the  United  States.''' 

1  Bacon's  Tracts,  331.  2  i  Prest.  Est.  207 ;  1  Atkinson,  Conv.  11. 

3  Montgomery  v.  Dorion,  7  N.  H.  475 ;  Orr  v.  Hodgson,  4  Wheat.  453 ;  Fox  v. 
Southack,  12  Mass.  143  ;  Mooers  v.  White,  6  Johns.  Ch.  365  ;  Wms.  Real  Prop. 
58 ;  1  U.  S.  Dig.  "  Alien,"  §§  62,  63,  66. 

4  Orr  V.  Hodgson,  4  Wheat.  453 ;  Mooers  v.  White,  ubi  supra,  where  it  is  said 
"the  law  qua  nihil  frustra  never  casts  the  freehold  upon  an  alien  heir  who  cannot 
keep  it."  Jackson  v.  Lunn,  3  Johns.  Gas.  109  ;  1  U.  S.  Dig.  "  Alien,"  §  61 ;  Doe 
V.  Lazenby,  1  Smith  (Ind.)  203. 

5  Slater  v.  Nason,  15  Pick.  345. 

6  Commonwealth  v.  Andre,  3  Pick.  224;  Goodell  v.  Jackson,  20  Johns.  707. 

"!  Connecticut  aliens,  if  resident,  may  purchase,  hold,  inherit,  and  transmit  as 
native-born  citizens.  Gen.  Stat.  1866,  p.  537.  —  In  Delaware,  aliens  may  take  by 
purchase  if  they  have  declared  their  intention  to  become  citizens,  and  by  de.scent 
if  residents  in  the  United  States  at  the  death  of  intestate.     Rev.  Code,  1852, 


CH.  III.]  ESTATES   IN    FEE-SIMPLE.  75 

*26.  At  common  law,  corporations  might  take  and  [*oO] 
hold  and  dispose  of  real  estate,  for  any  purposes  not 
inconsistent  with  those  for  which  they  were  created.^ 

c.  81,  §  1. — Alabama,  Code,  1867,  §  1896.  —  Arkansas,  substantially  the  same  as 
Delaware.  Rev.  Stat.  c.  7,  §  1.  —  California,  aliens  may  take  and  hold  estates  as 
citizens,  if  residents ;  if  not,  they  may  inherit  if  they  come  and  claim  wiUiin 
five  years  after  the  inheritance  falls  to  the  heir.  Const,  art.  1,  §  17,  Act  185G, 
c.  116.  —  Florida,  they  may  purchase,  hold,  enjoy,  sell,  or  devise  lands  as  citizens. 
Thompson's  Dig.  2  Divis.  tit.  2,  c.  1,  §  3.  —  Georgia,  they  may  purchase  and  con- 
vey lands  if  they  have  given  their  declaration  of  intention  to  become  citizens. 
Code,  187.3,  p.  465.  The  acts  of  1866  provide  that  aliens  may  own  and  convey 
lauds.  — Illinois,  widows  of  aliens  are  entitled  to  dower.  Eev.  Stat.  1856,  c.  34, 
§  2.  And  aliens  may  take,  transmit,  and  devise,  in  all  respects,  as  native-born 
citizens.  Rev.  Stat.  1874,  p.  136. — Iowa,  all  disability  is  removed.  Const,  art. 
1,  §  22. — Kentucky,  aliens,  not  enemies,  may  recover,  inherit,  hold,  or  pass  by 
descent,  devise,  or  otherwise,  after  they  have  declared  their  intention  of  becoming 
citizens.  Gen.  Stat.  1873,  191.  — Maine,  they  may  take,  hold,  convey,  or  devise. 
Rev.  Stat.  1857,  c.  73,  §  2.  — Maryland,  disabilities  removed  by  Stat.  1859. 
Code,  vol.  1,  art.  4,  §  1,  &c.  —  Michigan,  there  is  no  disability.  Rev.  Stat. 
1846,  c.  66,  §  35.  —  Mississippi,  the  same  as  to  aliens  resident  in  the  State.  Rev. 
Code,  1857,  c.  36,  §  9,  art.  65.  —  Missouri,  the  same  as  to  aliens  resident  in  the 
State.  As  to  aliens  resident  in  the  United  States  the  same  rule  applies  if  they 
have  declared  their  intention  to  become  citizens  and  taken  the  requisite  oath. 
Gen.  Stat.  1866,  c.  448,  §§  1,  2.  —  New  Hampshire,  resident  aliens  may  take,  pur- 
chase, hold,  convey,  or  devise  real  estate.  Gen.  Stat.  1867,  c.  121,  §  16.  —  New 
Jersey,  aliens  may  purchase,  hold,  and  convey  real  estate.  Rev.  Stat.  1847,  c.  1, 
§  1.  — New  York,  aliens  who  have  taken  incipient  steps  to  becoming  citizens,  may 
be  enabled  to  take  and  hold  lands  to  him  and  his  heirs  and  assigns,  and  if  he 
make  oath  in  prescribed  form,  may  within  six  years  thereafter,  sell,  assign,  or 
devise  it.  1  Stat,  at  Large,  668.  Heirs  and  widows  of  aliens  may  take  by  de- 
scent and  dower.  4  Do.  301. — North  Carolina,  aliens  may  take  and  hold  lands 
as  citizens.  Gen.  Stat.  1873,  p.  78.  — Ohio,  all  disability  removed.  Rev.  Stat. 
1854,  c.  3,  §  1.  —  Massachusetts,  the  same.  Gen.  Stat.  c.  91,  §  38.  —  Pennsylvania, 
the  same.  Dunlop's  Laws,  p.  173.  —  Rhode  Island,  aliens  may  hold  and  dispose  of 
real  estate.  Gen.  Stat.  1872,  p.  848.  —  South  Carolina,  aliens  may  hold,  convey, 
or  devise  lands  if  they  have  declared  their  intention  of  becoming  citizens.  Stat, 
vol.  5,  p.  547.  —  J'ennessee,  they  may,  if  residents,  acquire  and  hold  real  estate  by 
descent  or  purchase,  if  they  have  declared,  or  shall  within  one  year  afterwards 
declare,  their  intention  of  becoming  citizens.  Carruthers  &  Nicholson's  Dig.  1836, 
p.  87,  c.  36.  —  Texas,  all  disability  removed  if  a  resident,  and  he  has  made  decla- 
ration of  his  intention  to  become  a  citizen.  Stat.  1854,  c.  70,  §  2.  —  Vermont, 
every  person  of  good  character  who  comes  to  settle  in  the  State  may  take  and 
hold  lands.  Constitution,  §  39.  —  Virginia,  aliens  may  hold  lands  who  have 
made  oath  of  intent  to  continue  to  reside  in  the  State,  if  a  resident.  Code,  1860, 
p.  557. —  PFi'sco?is»i,  all  disabilities  removed;  Rev.  Stat.  1849,  c.  62,  §35.  Also 
in  Nebraska  ;  Rev.  Stat.  1866,  p.  292.  And  in  Dakotuh  ;  Civ.  Code,  1866.  So  in 
Nevada  ;  Laws,  1867.  —  West  Virginia,  aliens  who  have  made  oath  of  intent  to 
become  citizens  may  hold  real  estate.     Code,  1868,  p.  458. 

1  Sutton  V.  Cole,  3  Mass.  239 ;  Ang.  &  Ames,  Corp.  ch.  v.  §  1 ;  Warden  «■ 
S.  E.  Railway,  13  Eng.  L.  &  Eq.  240. 


76  LAW   OF   REAL   PROPERTY.  [BOOK   L 

27.  In  England,  from  the  time  of  the  Magna  Charta,  cor- 
porations have  been  restrained  from  holding  lands  by  what 
are  called  statutes  against  mortmain,  or  holding  in  dead  hands. 
But  these  seem  not  to  have  been  adopted  in  any  of  the  United 
States  except  Pennsylvania,  where  no  corporation  may  hold 
lands  unless  specially  authorized  by  act  of  the  legislature.^ 
This  power  to  hold  land,  it  seems,  may  belong  to  corporations 
created  by  States  other  than  where  the  lands  are  situate,  un- 
less the  laws  of  the  latter  State  restrain  it.^ 

28.  Corporations  in  this  country  are  generally  limited  in 
the  acts  creating  them  as  to  the  value  or  amount  of  real 
estate  they  may  hold.  And  the  question  has  been  made  as 
to  the  effect  of  their  holding  a  larger  amount  than  that  pre- 
scribed.    The  rule  seems  to  be  this :    If  the  property,  when 

purchased,  does  not  exceed  the  sum  limited,  their  title 
[*51]   to  it  cannot  be  *  affected  by  its  rising  in  value  to  a 

greater  amount  than  that ;  if  of  greater  value  at  first, 
nobody  can  disturb  their  title  to  it  except  the  State.^ 

29.  Different  writers  upon  the  subject  have  adopted  differ- 
ent orders  of  arrangement  in  treating  of  estates.  But  as 
seemingly  the  most  natural  one,  it  is  proposed  to  consider 
first  that  out  of  which  the  others  are  derived  or  carved,^  and 
then  to  treat  of  these  in  their  order  of  importance  as  measured 
by  quantity  or  duration. 

30.  Adopting  this  order,  the  first  of  these  is  an  estate  in 
fee-simple. 

31.  Fee,  as  is  originally  used,  signified  land  holden  of  some 
one  as  distinguished  from  allodial  lands,  fee  and  feud  being 
synonymous  terms.  But  now  it  is  ordinarily  used  to  denote 
the  quantity  of  estate  in  land,  and  is  confined  to  estates  of  in- 
heritance, or  those  which  may  descend  to  heirs.  So  that  fee 
may  be  considered  as  in  itself  implying  an  inheritance.^ 

32.  When  the  term  "  simple  "  is  applied,  it  means  no  more 

1  Ang.  &  Ames,  Corp.  ch.  v.  §  1 ;  2  Kent,  Com.  282,  283,  and  note  ;  Lathrop 
V.  Com.  Bank,  8  Dana,  119.  The  English  statute  of  mortmain  (9  Geo.  II.  c.  26)  did 
not  extend  to  Massachusetts.    Jackson  v.  Phillips,  14  Allen,  591. 

2  Ang.  &  Ames,  Corp.  ch.  v.  §  1 ;  Thompson  v.  Waters,  25  Mich.  214. 

3  Bogardus  v.  Trinity  Church,  4  Sand.  Ch.  757.  *  1  Prest.  Est.  424. 

5  Co.  Lit.  1  a,  n. ;  Termes  de  Ley,  "  Fee  "  ;  Wright,  Ten.  149 ;  Lit  §  1 ;  2 
Bl.  Com.  106. 


r.H.  III.]  ESTATES    IN   FEE-SIMPLE.  77 

than/ee  when  standing  by  itself,  as  understood  in  respect  to 
modern  estates.  But  it  excludes  all  qualification  or  restric- 
tion as  to  the  persons  who  may  inherit  it  as  heirs,  to  distin- 
guish it  from  a  fee-tail,  which,  though  an  inheritable  one, 
will  descend  only  to  certain  classes  of  heirs,  as  well  as  from 
an  estate  which,  though  inheritable,  is  subject  to  condition  or 
collateral  determination. ^ 

33.  A  fee-simple,  therefore,  is  the  largest  possible  estate 
which  a  man  can  have  in  lands,  being  an  absolute  estate  in 
perpetuity.  It  is  where  lands  are  given  to  a  man  and  to  his 
heirs  absolutely,  without  any  end  or  limitation  put  to  the 
estate.^  And  a  fee-simple  absolute  simply  means  a  "  fee- 
simple."  The  word  "  absolute  "  adds  nothing  to  its  meaning 
or  effect.^ 

34.  It  gives  him  the  fullest  power  of  disposing  of 

the  estate,  *  and,  if  he  fails  to  do  this,  it  descends  to  [*52] 
such  of  his  kindred,  however  remote,  as  the  law  marks 
out  as  his  heir.^ 

35.  It  is  not  necessary,  however,  that  the  estate  should  be 
absolutely  indefeasible,  if,  until  it  is  defeated,  it  is  subject  to 
unlimited  alienation  and  descent,  as  would  be  the  case  with 
lands  acquired  and  held  by  disseisin.  The  disseisor,  so  long 
as  he  holds,  has  in  law  a  fee-simple  estate,  though  liable  to  be 
defeated  by  the  rightful  owner  recovering  his  seisin,^  and  one 
reason  is,  there  cannot  be  two  fees-simple  in  the  same  land.^ 

36.  So  an  estate  is  generally  called  a  fee-simple,  though  it 
may  be  granted  on  condition,  liable  to  be  defeated  on  the 

1  Wright,  Ten.  146  ;  Co.  Lit.  lb;  2  BL  Com.  106  ;  1  Prest.  Est.  420  ;  Lit. 
§293. 

^  2  Bl.  Com.  106  ;  Plowd.  557  ;  1  Prest.  Est.  425 ;  Lit.  §  1 ;  Atkinson,  Conv.  183. 

3  14  Cal.  631. 

*  Burton,  Real  Prop.  §  14 ;  1  Atkinson,  ConT.  179,  183 ;  Currier  v.  Gale,  9 
Allen,  525.  5  i  Prgst.  Est.  426. 

6  Id.  423.  The  relation  of  the  disseisor  to  the  estate,  so  far  as  the  disseisee 
is  concerned,  is  this  :  The  disseisee  may  have  an  action  of  trespass  against  the 
disseisor  for  the  act  of  entry,  but  after  the  disseisin  made,  he  cannot  recover  for 
the  mesne  profits,  since  they  follow  possession,  until  the  disseisee  regains  his 
possession  by  entry,  when  the  disseisor  becomes  a  trespasser  ab  initio,  and  liable 
in  trespass  for  the  mesne  profits.  Gilbert,  Ten.  41  ;  2  Rolle,  Ab.  553,  554 ;  Big- 
elow  V.  Jones,  10  Pick.  161 ;  Abbott  v.  Abbott,  61  Maine,  679;  Allen  v.  Thayer 
17  Mass.  299;  Lehman  v.  Kellerman,  66  Penn.  489. 


78  LAW   OF   REAL   PROPERTY.  [BOOK   1. 

happening  of  some  future  event.  Until  that  happens,  and 
until  the  grantor  or  his  heirs  or  devisees  enter  and  put  an  end 
to  the  estate,  it  has  all  the  qualities  of  a  fee-simple.  This  is 
also  true  in  respect  to  an  estate  which  is  subject  to  be  de- 
feated by  something  collateral  to  it  which  may  never  happen, 
but  if  it  happens,  the  estate  is  at  an  end ;  which,  as  will  be 
seen,  is  regarded  as  a  base  fee  as  distinguished  from  a  techni- 
cal fee-simple,  as  if,  for  instance,  the  grant  be  to  one  and  his 
heirs  till  A  returns  from  Rome.^ 

37.  One  of  the  most  important  incidents  to  a  fee-simple  is 
the  right  of  free  and  unlimited  alienation.^ 

38.  This  right  of  alienation  seems  to  have  been  gradually 
acquired,  feuds  for  some  time  after  the  Conquest  being  in- 
aUenable.  When  first  allowed,  it  could  only  be  done  by 
consent  of  the  lord,  for  which  a  fine  had  to  be  paid.^ 

39.  And  when  feuds  were  first  granted  to  a  man  and  his 
heirs,  the  heirs  were  considered  as  having  been  in- 

[*53]  eluded  as  donees  *of  the  estate,  and  the  feudatory 
could  not  alien  the  land  without  consent  of  the  heir 
presumptive.*  The  "  Mirror  "  (p.  11)  gives  an  ordinance  of 
one  of  the  early  kings,  whereby  "  socage  lands  should  be  part- 
able  among  the  heir's  rights,  and  that  none  might  alien  but  a 
fourth  part  of  his  inheritance  without  the  consent  of  his  heir, 

1  1  Cruise,  Dig.  55  ;  1  Prest.  Est.  431.  Though  the  term  fee-simple  is  applied 
in  the  manner  above  stated,  and  Coke  divides  it  into  fee-simple  absolute,  fee- 
simple  conditional,  and  fee-simple  qualified  or  base  fee,  yet  in  point  of  accuracy 
it  cannot  be  properly  a  fee-simple  if  it  is  either  base,  conditional,  or  qualified.  It 
is  also  often  used  by  way  of  contrast  with  fee-tail.  The  reader  may  therefore  be 
obliged  to  refer  to  the  context  in  order  to  determine,  in  some  cases,  in  which  of 
these  senses  the  term  may  be  used  in  the  following  pages.  Vide  1  Prest.  Est. 
429,  431 ;  Co.  Lit.  1  b,  and  note. 

-'  Lit.  §  360 ;  1  Prest.  Est.  430.  See  18  Am.  Law  Reg.  393,  as  to  what  re- 
straints may  be  enforced  upon  the  alienation  of  estates. 

3  1  Spence,  Eq.  Jur.  137  ;  Wright,  Ten.  167  ;  1  W.  Bl.  134.  Maine,  Anc.  L. 
230. 

*  1  Spence,  Eq.  Jur.  137  ;  W^right,  Ten.  167;  1  W.  Bl.  134.  Mr.  Thrupp,  in 
his  historical  Law  Tracts,  informs  us,  that  after  the  arrival  of  the  Normans  in 
England,  there  existed  amongst  them  two  kinds  of  estates,  one  of  wliich  they 
were  forbidden  to  part  with  without  consent  of  their  relatives,  answering  to  the 
famihj  estate  among  the  Jews.  The  other  were  alienable  at  pleasure,  provided 
the  owner,  by  so  doing,  did  not  thereby  leave  his  children  destitute.  The  last 
were  known  as  "  acquired  "  or  earned  estates,  p.  226. 


CH.  III.]  ESTATES   IN   FEE-SIMPLE.  79 

and  that  none  might  alien  his  lands  by  purchase  from  his 
heirs,  if  assigns  were  not  specified  in  the  deeds." 

40.  The  right  of  defeating  the  expectation  of  collateral 
heirs  by  alienation  had  been  acquired  as  early  as  the  time  of 
Henry  I.  so  far  as  it  related  to  estates  obtained  by  purchase. 
In  the  time  of  Henry  II.  this  right  was  extended  to  a  reason- 
able part  of  his  family  inheritance,  though  he  could  not  disin- 
herit his  oldest  son.^  Bacon  says  that,  "  in  Glanville's  time 
(Henry  II.  1154-1190)  the  ancestor  could  not  disinherit  his 
heir  by  grant  or  other  act  executed  in  time  of  sickness,  neither 
could  he  alien  land  that  had  descended  to  him,  except  it  were 
for  a  consideration  of  money  or  service,  but  not  to  advance 
any  younger  brother  without  the  consent  of  the  heir."^ 

41.  In  the  reign  of  Henry  III.  (1216-1272),  the  right  to 
alien  had  so  far  obtained  a  hold  upon  this  kind  of  estate,  that 
an  ancestor  might  convey  the  lands  in  his  possession,  and 
thereby  cut  off  his  heirs,  whether  of  his  body  or  collateral, 
and  this,  whether  he  held  them  to  him  and  his  heirs,  or  to 
him  and  the  heirs  of  his  body.^ 

42.  And  although  the  custom  of  subinfeudation  had  be- 
come general  before  the  time  of  Magna  Charta  (1215),  lands 
were  not  freely  alienable  until  the  time  of  Edward  I.,  when, 
by  the  statute  Quia  JSmptores,  the  18th  of  that  reign  (1290), 
ch.  1,  every  free  man  was  at  liberty  to  sell  his  lands,  or  any 
part  of  them,  though  the  Magna  Charta  itself  incidentally 
recognized  it  as  an  existing  right.  But  until  the  statute  of 
18  Edward  I.,  Bacon  says,  "  the  lord  was  not  forced  to 
destruct  or  dismember  his  seigniory  or  service."^ 

43.  Now  the  right  of  disposing  in  fee-simple  by  act  inter 
vivos  is  the  undisputed  privilege  of  every  tenant  of  such  an 
estate.  In  the  language  of  Lord  Coke,  "  All  his  heirs  are  so 
totally  in  him,  he  may  give  the  lands  to  whom  he  will."  ^ 

*44.  This  brief  history  is  but  one  of  the  many  illus-  [*54] 
trations  which  the  changes  in  the  law  afford,  of  how 
the  wants  of  a  community  supply  sometimes  by  statute,  but 

1  1  Spence,  Eq.  Jiir.  138  •  "Wms.  Real  Prop.  33,  and  note. 

2  Bacon's  Tracts,  328 

8  Wras.  Real  Prop.  35,  Uracton,  b.  2,  c.  6,  fol.  17  a. 

*  Wms.  Real  Prop.  56  ;  Bacon's  Tracts,  380.  5  Co.  Lit.  43  b. 


80  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

oftener  by  the  irresistible  force  of  public  sentiment  in  the 
form  of  unwritten  law,  the  means  of  overcoming  rules  and 
institutions  incompatible  with  these  wants.  The  growing 
spirit  of  trade  and  commerce,  though  feeble  at  that  day  in 
comparison  with  the  days  of  Holt  and  Mansfield,  who  were 
respectively  chief  justices  of  the  King's  Bench  in  1689  and 
from  1760  to  1787,  broke  through  the  iron  bonds  in  which 
the  real  estate  of  the  kingdom  had  been  locked  up,  and  made 
it  liable  for  the  debts  of  its  owners,^  and  the  subject  of  trade 
and  exchange. 

45.  Though  it  is  true,  as  already  stated,  that  the  power  of 
free  alienation  is  incident  to  an  estate  in  fee-simple,  and  a 
condition  altogether  preventing  alienation,  in  a  grant  of  lands 
or  devise  of  the  same  in  fee-simple,  would  be  void,  as  being 
repugnant  to  the  estate  ;  ^  yet,  if  it  be  only  to  a  limited  extent, 
as  to  A  B  and  the  like,  or  for  a  certain  time,  provided  it  be 
a  reasonable  time,  the  condition  may  be  a  valid  one,  and  the 
grantee  may  forfeit  his  estate  by  violating  it.^  A  devise  to 
one  in  fee,  bat  restricting  him  from  aliening  it  in  any  way 
until  the  devisee  should  arrive  at  the  age  of  thirty-five,  was 
held  to  be  a  valid  restriction.*  But  "  no  one  can  creat-e  what 
is  in  the  intendment  of  the  law  an  estate  in  fee,  and  deprive 
the  tenant  of  those  essential  rights  and  privileges  which  the 
law  annexes  to  it.  He  cannot  make  a  new  estate  unknown, 
to  the  law.^ 

46.  So,  in  a  devise  to  A  B  and  his  heirs,  there  may  be  a 
limitation  that  if  he  fails  to  convey  it  in  his  lifetime,  it  shall 
go  over  to  another  devisee  named,  and  the  limitation  be  a 
valid  one.^ 

47.  But  a  condition  restricting  the  right  to  alien  to  a  single 
person  only  will  be  void  as  repugnant,  since  the  person  so 

1  3d  Stat.  13  Edw.  I.,  De  Mercalonbns,  A.  D.  1285. 

2  Lit.  §  360;  1  Prest.  Est.  477  ;  Blackstone  Bank  v.  Davis,  21  Pick.  42;  Brad- 
ley V.  Peixoto,  3  Ves.  Jr.  324 ;  Tud.  Cas.  794 ;  Hall  v.  Tufts,  18  Pick.  455. 

3  Lit.  §  361;  1  Prest.  Est.  478  ;  Tud.  Cas.  794,  795;  Mc Williams  v.  Nisly,  2 
S.  &  R.  507,  513.     See  Large's  Case,  2  Leon.  82. 

*  Stewart  v.  Brady,  3  Bush,  623. 
6  Doebler's  Appeal,  64  Penn.  St.  17. 

6  Doe  V.  Glover,  1  C.  B.  448.  But  see  Ide  v.  Ide,  5  Mass.  500  ;  and  post,  voi 
2,  p.  *374. 


CH.  III.]  ESTATES   IN    FEE-SIMPLE.  81 

selected  by  grantor  or  devisor  might  be  one  of  known  inca- 
pacity to  purchase.  And,  in  short,  conditions  as  to  time 
when,  and  persons  to  whom  alienations  cannot  be  made, 
must  be  reasonable  in  order  to  their  being  valid .^ 

*48.  The  power  of  devising  lands  by  will  is  of  a  much  [*55] 
later  origin  than  of  conveying  them  by  deed,  except  in 
certain  localities  in  England.  The  only  mode  in  which  it 
could  be  done  prior  to  the  statute  of  Henry  VIII.,  hereafter 
mentioned,  was  by  means  of  uses.  One  way  of  doing  this 
was  by  conveying  them  to  some  one  to  hold  to  such  uses  as 
the  grantor  should  declare  by  his  last  will.  And  when  he  had 
made  such  declaration,  it  operated,  by  the  interposition  of 
chancery,  to  give  the  beneficial  interest  in  the  lands  to  such 
devisee.^ 

49.  In  the  words  of  Lord  Bacon,  "  Lands  by  the  common 
law  of  England  were  not  testamentary  or  devisable ; "  ^  and 
one  reason  for  this  was,  that  the  alienation  by  will  could  not 
be  consummated  by  livery  of  seisin  by  devisor  to  devisee.^ 

50.  As  the  statute  27  Henry  VIII.  united  the  seisin  and 
the  use  in  the  one  who  was  entitled  to  the  use,  its  effect  was 
to  defeat  the  customary  mode  of  making  devises  by  the  way 
of  use.  And  there  was  no  way  of  disposing  of  lands  by  will 
in  fee  from  that  time  till  the  statute  32  Henry  VIII.  chap.  1, 
which  was  explained  by  the  statute  34  and  35  Henry  VIII. 
chap.  5,  by  which  any  person  having  an  irtterest  in  lands  held 
in  socage  might  devise  it  by  his  last  will  to  any  person  except 
a  body  corporate  or  politic.  And  as  this  power  had  been  en- 
joyed both  under  the  Saxons  and  Danes,  it  justified  the  remark 
of  a  writer,  that  "  a  will  of  lands  thus  again,  after  an  interval 
of  nearly  five  hundred  years,  became  a  legal  mode  of  aliena- 
tion of  lands  and  hereditaments."  ^ 

1  Attwater  v.  Attwater,  18  Beav.  330,  overruling  Doe  v.  Pearson,  6  East,  173 ; 
1  Prest.  Est.  478.  The  reader  will  observe  that  the  conditions  and  restrictions 
above  referred  to  are  of  a  distinct  class  from  those  which  affect  the  mode  or  pur- 
poses of  occupation  of  estates,  which  belong  to  another  part  of  this  work. 

2  Co.  Lit.  Ill  b,  n.  138;  Wright,  Ten.  172,  173 ;  1  Spence,Eq.  Jur.  136,  441 ; 
Bacon's  Tracts,  152;  Perkins,  §  538.     Post,  vol.  2,  p.  *103. 

3  Bacon's  Tracts,  316. 

*  Co.  Lit.  Ill  b,  n.  138 ;  1  Spence,  Eq.  Jur.  136,  441. 
6  1  Spence,  Eq.  Jur.  469;  Co.  Lit.  HI  b,  n.  138. 
VOL.  I.  6 


82  LAW   OF   REAL    PROPERTY.  [BOOK    I. 

51.  It  is  hardly  necessary  to  add  that  in  respect  to  the  form 
of  aliening  estates  in  fee-simple,  what  was  said  in  respect  to 
passing  freehold,  by  livery  or  deed,  and  by  the  means  of  the 
doctrine  of  uses,  applies  to  these  also.  And  though,  borrow- 
ing from  the  common  law,  the  owner  of  such  an  estate  "  is 
called  a  tenant  because  he  holdeth  of  some  superior 
[*56]  lord  by  some  *  service,"  ^  the  term  tenant  is  now  used 
only,  in  its  popular  sense,  as  sjmonymous  with  owner. 

62.  A  fee-simple  may  be  had  in  incorporeal  as  well  as  cor- 
poreal hereditaments,  though  in  speaking  of  the  one  or  the 
other,  the  owner  is  said  to  be  seised  "  in  his  demesne  as  of 
fee  "  of  corporeal,  and  "  seised  as  of  fee  "  of  incorporeal  here- 
ditaments ;  the  distinction  being  that  the  latter  issue  out  of 
lands  which  belong  to  another  than  him  who  owns  the  right 
of  way,  for  instance,  or  whatever  the  hereditament  may  be, 
and  in  such  case  the  owner  of  the  easement,  as  such  a  right 
would  be  called,  has  no  dominion  over  or  ownership  of  the 
land  itself,  though  he  may  own  the  easement  to  himself  and 
his  heirs  as  fully  as  he  could  the  land.^ 

53.  The  origin  of  the  use  of  "  heirs  "  in  creating  an  estate 
in  fee  by  grant  has  already  been  explained,^  though  it  has  ob- 
viously become  a  mere  arbitrary  rule.  Still,  anless  changed  by 
statute,  it  is  as  imperative,  as  a  rule  of  law,  now  as  ever.  No 
synonym  will  supply  its  place.  Even  a  grant  to  one  and 
"  his  /leiV"  wdll  give  him  only  a  life  estate,*  or  to  one  "or  his 
heirs,"  ^  or  to  one  "  and  his  heirs  during  the  life  of  another,"  ^ 
or  to  one  "  forever,"  or  to  one  "  and  his  assigns  forever,"  and 
the  words  "  forever,"  or  assigns,"  have  no  effect  at  this  day 
in  limiting  or  defining  what  estate  is  granted.'^  So  to  one 
"  and  his  successors,"  ^  or  to  one,  his  successors  and  assigns, 
is  a  life  estate  only,  although  coupled  with  a  power  to  sell  and 
convey  a  fee,^  or  to  one  and  his  "seed,"  or  "  his  offspring,"  or 

1  Co.  Lit.  lb.  2  2  Bl.  Com.  106,  107.  »  Ante,  pp.  *27,  *28. 

<  Co.  Lit.  8  b;  2  Prest.  Est.  8;  Id.  10;  Com.  Dig.,  Estate,  A.  2.  Though  this 
is  questioned  by  some  authorities,  see  4  Kent,  Com.  6,  note,  and  cases  cited  ;  Tud. 
Cas.  586  ;  especially  if  "  heir  "  can  be  construed  to  be  nomen  collectivum.  Hargrave, 
Co.  Lit.  8  b,  n.  45.  5  Co.  Lit.  8  b  ;  Com.  Dig.,  Estate,  A.  2. 

6  1  Prest.  Est.  479. 

"<  2  Bl.  Com.  107  ;  2  Prest.  Est.  3;  Id.  5;  1  Spence,  Eq.  Jur.  139;  Adams  ». 
Ross,  1  Vroom,  N.J.  511. 

8  Co.  Lit.  8  b  9  Sedgwick  v.  Laflin,  10  Allen,  430. 


CH.  Ill,]  ESTATES   IN   FEE-SIMPLE.  83 

to  one  "  and  the  issue  of  his  body,"  ^  or  to  one  in  "  fee-sim- 
ple," ^  or  to  one,  "  his  executors,  administrators,  and  as- 
signs." ^  No  circumlocution  has  ever  been  held  sufficient  to 
create  a  fee.* 

*54.  There  are  what  might  seem  at  first  sight  ex-  [*57] 
ceptions  to  this  rule.  Thus,  if  an  estate  be  granted 
clearly  in  fee,  and  the  deed  by  which  it  is  again  granted,  in- 
stead of  being  to  the  grantee  and  his  heirs,  be  to  him  as  fully 
as  it  was  granted  in  the  former  deed  referring  to  it,  it  is  only 
borrowing  the  words  of  limitation  from  the  former  deed,  and 
conveys  a  fee.^ 

65.  In  the  case  of  conveyances  in  trust,  the  trustee  will 
take  the  legal  estate  in  fee,  although  limited  to  him  without 
the  word  heirs,  if  the  trust  which  he  is  to  execute  be  to  the 
cestui  que  trust  and  his  heirs.  The  words  of  limitation  and 
inheritance  in  such  case  are  connected  with  the  estate  of  the 
cestui  que  trusty  but  are  held  to  relate  to  the  legal  estate  in 
the  trustee,  because  without  such  a  construction  the  trustee 
would  not  be  able  to  execute  the  trust.  His  estate  Would  be 
commensurate  with  the  trust,  and  that  only,  even  though  it 
were  to  him  and  his  heirs,  and  the  trust  was  for  life  only  in 
the  cestui  que  trust. ^  Thus  a  grant  to  A  B  in  trust  to  sell 
carries  a  fee.'''  So,  if  to  A  and  his  heirs  in  trust  for  B  till  he 
attains  twenty-one  years,  the  trustee  takes  a  chattel  interest 

1  Wms.  Real  Prop.  120. 

2  Bridgewater  v.  Bolton,  6  Mod.  109  ;  2  Brest.  Est.  5. 

3  Cle.nrwater  v.  Rose,  1  Blackf.  137.  In  the  case  of  Foster  v.  Joice,  3  Wash. 
C.  C.  498,  the  deed  was  "  to  J.  M.  and  his  generation  to  endure  so  long  as  the 
waters  of  the  Delaware  run,"  and  held  to  be  a  life  estate  only.  But  in  Vermont 
a  lease  for  1,000  years,  or  as  long  as  wood  grows  and  water  runs,  was  held  to  be 
a  fee.     Arms  v.  Burt,  1  Vt.  303  ;  Stevens  v.  Dewing,  2  Vt.  411. 

*  Adams  v.  Ross,  1  Vroom,  512. 

6  Com.  Dig.,  Estate,  A.  2,  n.  ;  Shep.  Touch.  101 ;  2  Brest.  Est.  2. 

6  Newhall  v.  Wheeler,  7  Mass.  189 ;  White  v.  Woodbury,  9  Bick.  186 ;  Fisher 
V.  Fields,  10  Johns.  505 ;  post,  vol.  2,  pp.  *186,  *187 ;  .Jenkins  v.  Young,  Cro. 
Car.  280 ;  North  v.  Bhilbrook,  84  Maine,  532,  537  ;  1  Sand.  Uses,  107  ;  Gould  v. 
Lamb,  11  Met.  84 ;  Brooks  v.  Jones,  lb.  191;  Tiff.  &  Bui.  Trus.  788  etseq.; 
Hill,  Trust,  289  ;  Tud.  Cas.  459.  But  see  Jackson  v.  Myers,  3  John,  888,  896 ; 
Sears  r.  Russell,  8  Gray,  89 ;  Koenig's  Appeal,  57  Penn.  St.  3.52,  355;  Doe  v. 
Considine,  6  Wall.  471 ;  2  Jarm.  on  Wills,  156. 

7  Angell  V.  Rosenbury,  12  Mich.  266  ;  Sears  v.  Russell,  8  Gray.  89 


84  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

only,  and  though  the  trust  is  to  "heirs,"  if  the  trustee  dies, 
his  executor  is  to  execute  the  trust,  and  not  his  heirs.^ 

56.  Legislative  grants  may  convey  lands  without  making 
use  of  technical  words  required  in  a  deed.^ 

57.  But  still  it  is  essential,  in  all  cases,  to  the  creation  of  a 
fee,  that  it  may  continue  forever.^ 

58.  A  limitation  to  one  and  his  "  right  heirs  "  is  the  same 
as  to  his  "  heirs  "  simply  ;  and  a  limitation  directly  to  the 
"  right  heirs  "  of  one  carries  a  fee  without  adding  the  words 

"  and  their  heirs."  ^ 
[*5S]        *59.  There  may,  too,  be  such  a  joint  interest  in  the 

fee  in  lands  between  two  persons,  that  if  one  simply 
releases  to  the  other  without  words  of  inheritance,  the  latter 
becomes  owner  in  fee  of  the  entire  estate ;  as  if  a  parcener  or 
joint  tenant  releases  to  his  co-]3arcener  or  co-tenant,  he  ex- 
tinguishes his  own  right,  leaving  the  other  the  sole  owner. 
So  if  a  disseisee  release  to  his  disseisor ;  ^  so  if  one  have  a 
right  in  fee  out  of  lands  owned  by  another  in  fee,  like  a  right 
of  way,  and  he  release  to  the  latter.^ 

60.  And  where  tenants  in  common  have  partition  made  of 
their  estate  by  act  of  law,  each  is  in,  in  the  part  set  off  to  him, 
in  severalty,  of  the  same  estate  as  he  had  in  his  undivided 
share  before.  But  if  they  make  partition  by  deeds  of  mutual 
grant  and  release,  nothing  more  than  a  life  estate  in  severalty 
would  pass  thereby  without  words  of  inheritance.'^ 

61.  So  if  one  having  an  estate  in  fee  in  remainder  or  rever- 
sion, releases  to  the  tenant  for  life  without  words  of  inheritance, 
it  would  give  him  no  more  than  a  life  estate.^ 

62.  If  lands  are  conveyed  to  a  corporation  aggregate,  it 
will,  from  the  nature  of  such  corporations,  be  understood  as  a 

1  2  Law  Mag.  82 ;  Doe  v.  Considine,  6  Wall.  470. 

2  Rutherford  v.  Greene,  2  Wheat.  196. 

3  1  Prest.  Est.  480.  The  "  rule  in  Shelley's  Case  "  forms  a  topic  for  special 
consideration  hereafter.     See  ])ost,  p.  *77. 

*  Co.  Lit.  10  a,  22  b ;  Com.  Dig.,  Estate,  A.  2  ;  1  Rolle,  Abr.  "  Estate,"  L.  8 ; 
4  Cruise,  276. 

5  Com.  Dig.,  Estate,  A.  2  ;  Lit.  §§  519,  520.  6  2  Prest.  Est.  58. 

7  2  Prest.  Est.  56,  58.  The  reasons  for  the  difference  in  this  respect  between 
tenants  in  common  and  joint  tenants  will  appear  hereafter. 

8  2  Prest.  Est.  62. 


CH.  III.]  ESTATES   IN   FEE-SIMPLE.  85 

fee  without  any  words  of  limitation.^  But  if  it  be  to  a  cor- 
poration sole,  it  must  be  limited  to  such  corporator  and  his 
"  successors,"  which  in  case  of  corporations  answers  to  "  heirs  " 
in  case  of  grants  to  natural  persons,  or  it  would  be  only  an 
estate  during  the  life  of  such  corporator.^ 

63.  One  seised  of  glebe  lands  as  parson,  is  considered  as  a 
corporation  sole,  and  if  land  be  granted  to  him  in  his  political 
or  artificial  capacity,  but  without  being  limited  to  his  "  suc- 
cessors," he  would  take  but  a  life  estate,  although  the  grant 
were  to  him  and  his  heirs.^ 

64.  Another  broad  class  of  cases  form  exceptions  to 

the  rule  *  requiring  a  limitation  to  "  heirs  "  to  create  an  [*59] 
estate  of  inheritance,  and  that  is  where  the  estate  is 
created  by  devise.  In  these  cases,  the  intention  of  the  testa- 
tor, if  clearly  expressed  by  his  last  will,  will  be  sufficient  to 
create  a  fee  without  the  use  of  the  word  '"  heirs."  *  Among 
the  illustrations  may  be  mentioned  a  devise  of  one's  estate  in 
such  lands,  and  he  owns  a  fee,^  or  "  all "  his  "  right,"  ^  or 
"all"  his  "property,"  or  "all"  his  "inheritance,"''  or  to 
one  "in  fee-simple."^ 

65.  So  if  it  is  necessary,  in  order  to  give  effect  to  a  charge 
or  trust  created  by  the  same  will,  to  hold  the  devise  a  fee,  it 
will  be  so  held.^ 

66.  So  a  fee  may  be  inferred  from  the  nature  of  the  use 
which  devisee  is  to  make  of  the  land ;  as,  a  devise  of  wild 
lands  to  one,  without  any  words  of  inheritance,  will  be  con- 
strued to  be  a  fee  because  a  mere  tenant  for  life  could  make 
no  use  of  such  land.  The  very  using  of  it  by  cutting  off  its 
timber  would  work  a  forfeiture.^*^ 

1  Wilcox  V.  Wheeler,  47  N.  H.  490. 

2  Ang.  &  Am.  Corp.  ch.  v.  §  1  ;  Overseers  v.  Sears,  22  Pick.  126;  Com.  Dig., 
Estate,  A.  2  ;  2  Prest.  Est.  43  ;  Id.  7  ;  Wilcox  v.  Wheeler,  47  N.  H.  488. 

3  Co.  Lit.  8  b ;  2  Prest.  Est.  6. 

*  Jarman  on  Wills,  c.  34,  p.  229,  1st  ed.  ;  Tud.  Cas.  588. 

5  2B1.  Com.  108;  Bridgewater  v.  Bolton,  6  Mod.  109;  Godfrey  v.  Humphrey, 
18  Pick.  537. 

•i  Newkerk  v.  Newkerk,  2  Caines,  345. 

7  Jackson  v.  Housell,  17  Johns.  281 ;  Wms.  Real  Prop.  189. 

*  Bridgewater  v.  Bolton,  6  Mod.  109. 

9  Baker  i-.  Bridge,  12  Pick.  27;  Wait  v.  Belding,  24  Pick.  138;  Godfrey  v. 
Humphrey,  18  Pick.  537. 

'0  Sargent  v.  Towne,  19  Mass.  303. 


86  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

67.  And  upon  the  same  principle,  if  lands  are  given  to  one 
by  will,  who  is  by  the  same  will  personally  charged  with  the 
payment  of  money  on  account  of  such  devise,  it  will  be  held 
to  be  a  fee,  for  the  testator  intended  to  make  him  the  object 
of  his  bounty  ;  and  if  he  only  takes  a  life  estate,  he  might 
die  the  day  after  paying  the  money,  and  so  lose  the  whole  ben- 
efit of  the  devise.^ 

68.  But  if  the  payment  is  charged  upon  the  lands  only  and 
not  upon  the  devisee  personally,  the  rule  does  not  apply .^ 

69.  To  obviate  any  question  in   cases  like  the  foregoing, 

there  is  now  a  provision  in  the  English  statutes  as  well 
[*60]   as  in  those  *  of  many,  if  not  all  the  States,  whereby  a 

devise  of  land  carries  whatever  estate  the  devisor  had 
in  them,  unless  the  same  is  restricted  or  qualified  by  the  lan- 
guage of  the  will.^ 

70.  With  far  more  questionable  wisdom  in  disturbing  a  well- 
defined  and  familiar  rule  of  conveyancing,*  the  States  men- 
tioned in  a  former  page  °  have  by  statute  dispensed  with 
words  of  inheritance  in  creating  a  fee. 

71.  Among  the  incidents  other  than  the  right  of  alienation 
belonging  to  estates  in  fee-simple  at  the  common  law,  are 
curtesy  and  dower ;  the  one  being  the  right  which  a  husband 
has  in  the  estate  of  his  wife,  if  he  survive  her,  the  other  the 
rioiit  which  a  wife  has  in  the  husband's  lands  if  she  survive 
him,  which  will  be  explained  in  their  proper  places.^ 

72.  Another  incident  has  already  been  anticipated,  and  that 
is,  that  if  not  aliened  by  deed  or  last  will  of  the  owner,  estates 
in  fee-simple  descend  without  restriction  to  whoever  is  by  law 
his  legal  heir  or  heirs,  and  this,  whether  the  estate  be  corpo- 

1  2  Bl.  Com.  108,  n. ;  Doe  v.  Richards,  3  T.  R.  356 ;  Jackson  v.  Merrill,  6 
Johns.  185 ;  Lithgow  v.  Kavenagh,  9  Mass.  161 ;  Wait  v.  fielding,  24  Pick.  139. 

2  Jackson  v.  Bull,  10  Johns.  148. 

3  7  Wm.  IV.  and  1  Vict.  c.  26,  §  28 ;  Mass.  Gen.  Stat.  c.  92,  §  5.  Such  is  the 
law  in  Alabama,  Arkansas,  Georgia,  Iowa,  Illinois,  Kentucky,  Mississippi,  Mis- 
souri, New  York,  Tennessee,  Texas,  Virginia,  New  Jersey,  and  North  Carolina. 
See  ante,  p.  *31,  n.  2.  Bell  Co.  v.  Alexander,  22  Texas,  358.  So  in  Nebraska, 
Rev.  Stat.  1866,  p.  291. 

*  2  Prest.  Est.  67  ;  2  Law  Mag.  72. 
6  Ante,  p.  *29,  n.  2. 

6  Tud.  Cas.  594.  The  law  as  to  dower  has  been  materially  altered  by  statute 
in  England  and  in  several  of  the  States,  as  will  be  shown  hereafter. 


CH.  III.]  ESTATES   IN    FEE-SIMPLE.  87 

real  or  incorporeal,  in  possession,  reversion,  or  remainder,  and 
whether  vested  or  contingent.^ 

73.  Lands  held  in  fee-simple  are  also  subject  to  the  debts 
of  the  owner,  both  in  England  and  this  country,  and  as 
well  after  his  death  as  while  living.  This  was  not  an  origi- 
nal incident  to  lands  so  held.  They  were  first  made  subject 
to  execution  by  the  statute  13  Edward  I.  c.  18,  though  if  the 
ancestor  bound  his  heirs  by  specialty  debts,  his  lands  which 
had  descended  to  his  heirs  might  have  been  taken  in  execu- 
tion at  common  law  in  an  action  against  the  heir,  unless  he 
had  conveyed  away  those  lands  before  suit  brought. 
Among  the  modes  of  taking  a  *  debtor's  lands  were  [*61] 
those  by  statute  merchant,  and  statute  staple,  forms 
prescribed  by  statute,  one  in  the  13  Edward  L,  the  other  in 
27  Edward  III.2 

74.  This  is  not  the  place  to  speak  of  the  effect  of  bankrupt 
or  insolvent  laws,  nor  the  modes  of  levying  executions  upon 
estates  of  debtors,  though  it  may  be  said,  in  general  terms, 
that  lands  in  this  country  are  liable  for  debts  of  the  owner, 
whether  due  by  matter  of  record,  by  specialty,  or  by  simple 
contract.  And  if  they  descend  to  the  heir  or  go  to  a  devisee, 
he  holds  them  subject  to  be  taken  for  the  payment  of  the  debts 
of  the  ancestor,  according  to  the  laws  of  the  State  in  which 
they  are  situate.' 

75.  From  the  definitions  heretofore  given,  it  would  seem  to 
follow  that  no  estate  could  be  limited  to  take  effect  after  a 
fee-simple,  as  that  in  its  nature  is  indeterminable.  But  it  will 
be  seen  that,  under  the  doctrine  of  uses  and  executory  devises, 
this  is  often  done  by  making  a  fee-simple  determinable  upon 
the  happening  of  some  event,  and  substituting  a  new  estate 
in  its  stead.* 

76.  As  every  estate  which  may  be  of  perpetual  continuance 
is  deemed  to  be  a  fee,  and  may  come  within  the  definition  of 
Lord  Coke,  of  a  fee-simple  absolute,  conditional,  qualified,  or 

1  Tud.  Cas.  594.  The  rules  of  descent  depend  upon  the  local  statutes  of  the 
several  States,  and  come  under  another  head  of  this  work.  »> 

2  1  Spence,  Eq.  Jur.  173,  174.     See  post,  ch.  15. 

3  Watkins  v.  Holman,  16  Pet.  63  ;  1  Greenl.  Cruise,  60,  n.  ;  Wyman  v.  Brig- 
den,  4  Mass.  150. 

4  Com.  Dig.  (Day's  ed.)  Estate,  A.  4, and  note;  Co.  Lit.  18  a;  2 Law  Mag.  82. 


88  LAW   OF  REAL   PROPERTY.  [BOOK   I. 

base  fee,^  this  seems  to  be  a  proper  connection  in  which  to 
treat  of  them. 

77.  Though  it  will  be  found  difficult  to  classify  these  by 
any  intelligible  line  of  discrimination,  the  limit  beyond  which 
one  may  depart  from  the  settled  forms  of  the  common  law  in 
creating  estates  with  new  qualities  of  inheritance,  is  extremely 
restricted.  Thus  an  estate  to  one  and  his  "heirs  male,"  or 
"  heirs  female,"  or  to  one  and  his  heirs  on  the  part  of  his 
father  or  of  his  mother,  would  be  regarded  as  a  fee-simple, 
the  limitation  to  the  particular  class  of  heirs  being  regarded 

as  surplusage. 2 
[*62]         *78.  A  base  fee  is  illustrated  in  "  Termes  de  Ley  " 

(Base  Fee)  by  an  estate  in  laud  so  long  as  another 
shall  have  heirs  of  his  body ;  so  in  Plowd.  557  a.  And  Flin- 
toff,  following  Blackstone,  speaks  of  "  a  base  or  qualified  fee," 
using  them  as  convertible  terms,  and  explains  it  by  the  famil- 
iar illustration  of  a  grant  to  A  and  his  heirs,  tenants  of  the 
manor  of  Dale,  the  grant  being  defeated  by  his  heirs  ceasing 
to  be  such  tenants.^ 

79.  The  term  determinable  fee  seems  to  be  more  generic  in 
its  meaning,  embracing  all  fees  which  are  liable  to  be  deter- 
mined by  some  act  or  event  expressed  in  their  limitation  to 
circumscribe  their  continuance,  or  inferred  by  law  as  bounding 
their  extent.* 

80.  Plowden  uses  the  following  language  :  "  Such  periDctu- 
ity  of  an  estate  which  may  continue  forever,  though  at  the 
same  time  there  is  a  contingency  which,  when  it  happens,  will 
determine  the  estate,  which  contingency  cannot  properly  be 
called  a  condition  but  a  limitation,  may  be  termed  a  fee- 
simple  determinable."  ^ 

81.  This  description  in  Plowden  answers  to  what  is  now 
denominated  "  a  conditional  Umitation,"  as  distinguished  from 

1  Frest.  Est.  480;  Co.  Lit.  1  b;  2  Flint.  Real  Prop.  137.  Judge  Kent  uses 
qualified,  hone,  and  determinable  fees  indiscriminately.     4  Kent,  Com.  9. 

2  Lit.  §  31 ;  Com.  Dig.,  Estate,  A.  6 ;  1  Prest.  Est.  472  ;  Id.  461 ;  Co.  Lit.  27  ; 
Id.  130  ;  2  Law  Mag.  68  ;  Id.  260. 

3  2  Flint.  Real  Prop.  136 ;  2  Bl.  Com.  109  ;  1  Spence,  Eq.  Jur.  144 ;  1  Prest 
Conv.  299. 

•*  1  Prest.  Est.  466  ;  Id.  431 ;  Seymour's  case,  10  Rep.  97. 
*  Walsingtiam's  case,  Piovvd.  557. 


CH.  IIl.j  ESTATES   IN    FEE-SIMPLE.  89 

an  estate  upon  condition,  the  estate  in  one  case  determining 
ipso  facto  by  the  happening  of  the  event  by  which  its  hmita- 
tion  is  measured ;  in  the  other,  though  liable  to  be  defeated, 
not  being  in  fact  determined  until  he  who  has  a  right  to  avail 
himself  of  the  condition,  enters  and  determines  the  estate.^ 

82.  And  it  may  be  well,  also,  in  this  connection  to  observe 
that,  at  the  common  law,  the  term  "  conditional  fee  "  often 
had  a  technical  meaning,  and  was  something  different  from 
an  estate  upon  condition,  as  above  explained.  It  was  applied 
to  those  fees  which  were  restricted  to  some  particular  heirs, 
as  limitations  to  one  and  the  heirs  of  his  body,  or  heirs  male 
of  his  body,  and  the  like,  which,  as  will  be  seen  hereafter,  were, 
by  the  statute  de  Bonis,  converted  into  estates  tail.^ 

*83.  But,  in  its    broader  sense,  a  determinable  or  [*63] 
qualified  fee   may  embrace  what  is  properly  a  condi- 
tional fee.^ 

84.  Among  the  instances  put  by  way  of  illustrating  a 
determinable  fee,  is  a  limitation  to  one  and  his  heirs,  peers  of 
the  realm  or  lords  of  the  manor  of  Dale,  or  so  long  as  a  cer- 
tain tree  stands,  or  until  the  marriage  of  a  certain  person,  or 
till  a  man  shall  go  to  or  return  from  Rome,  or  till  certain  debts 
are  paid,  or  so  long  as  A  or  his  heirs  shall  pay  B  a  certain  sum 
per  annum,  or  so  long  as  St.  Paul's  shall  stand,  or  until  a  pre- 
scribed act  shall  be  done,  or  until  a  minor  shall  attain  the  age 
of  twenty-one  years,  and  the  like.*  So  a  grant  to  a  canal 
corporation,  "  as  long  as  used  for  a  canal,"  was  held  to  be  a 
quahfied  fee.^ 

85.  But  a  limitation  to  A  and  his  heirs,  during  the  widow- 
hood of  B,  or  while  C  resides  at  Rome,  would  only  be  a  life 
estate  and  not  a  fee,  because  it  is  measured  by  the  life  of  a 
person  in  esse.^ 

86.  So  long  as  the  estate  in  fee  remains,  the  owner  in  pos- 

1  Brattle  St.  Church  v.  Grant,  3  Gray,  146,  147  ;  1  Prest.  Est.  475. 

2  2  Bl.  Com.  110  ;  2  Prest.  Est.  289  ;  1  Prest.  Abs.  378. 

3  1  Prest.  Est.  475. 

*  1  Prest.  Est.  442;  Id.  432;  Com.  Dig.  (Day's  ed.)  Estate,  A.  6,  n. ;  Cook  v. 
Bisbee,  18  Pick.  529  ;  Tud.  Cas.  605. 

5  State  V.  Brown,  3  Dutch.  20. 

6  1  Prest.  Est.  442 ;  McKelway  v.  Seymour,  5  Dutch.  329 ;  State  v.  Brown, 
3  Dutch.  20. 


90  LAW   OF   EEAL   PROPERTY.  [BOOK  I. 

session  has  all  the  rights  in  respect  to  it,  As^hich  he  would  have 
if  tenant  in  fee-simple,  unless  it  be  so  limited  that  there  is 
properly  a  reversionary  right  in  another,  something  more  than 
a  possibility  of  reverter  belonging  to  a  third  person,^  when, 
perhaps,  chancery  might  interpose  to  prevent  waste  of  the 
premises. 2 

87.  An  estate  to  one  and  his  heirs,  so  long  as  a  tree  stands, 
would  be  one  of  those  where  there  is  a  reversion,  because  the 
law  contemplates  as  certain  the  destruction  of  the  tree  at 
some  future  time,  and,  therefore,  that  there  will  certainly  be 
an  estate  in  some  one  other  than  the  tenant  and  those  hold- 
ing under  him,  after  the  happening  of  that  event.^ 

88.  On  the  other  hand,  if  it  be  to  A  and  his  heirs  till  B 
comes  back  from  Rome,  the  right  to  have  it  when  he 

[*64]    comes  back  is  *  not  a  reversion  but  a  mere  possibility  ; 
he  may  and  may  not  come  back,  and  if  he  were  to  die 
before  he  came  back,  the  estate  would  become  absolute  in  the 
grantee.* 

89.  A  fee  determinable  will  descend  in  the  line  of  succes- 
sion of  the  purchaser,  and  will  determine  upon  the  happening 
of  the  event  upon  which  it  was  first  limited,  into  whosesoever 
hands  it  may  have  come.^ 

90.  And  the  same  rule  applies  in  cases  of  estates  upon  con- 
dition ;  they  are  liable  to  be  defeated  by  a  breach  thereof,  in  the 
same  manner  as  they  would  have  been  in  the  hands  of  the 
original  grantee  as  long  as  the  condition  may  affect  them.^ 

91.  These  estates  often  may  become  fee-simple  absolute  by 
uniting  them  with  the  reversionary  or  possible  interest  in  the 
inheritance,  which  would  arise  or  come  into  possession  if  they 
were  to  determine,  or  by  extinguishing  such  a  possibility. 

92.  Thus  in  the  case  of  an  estate  to  A  and  his  heirs  so  long 
as  he  has  heirs  of  his  body,  where  if  he  dies  without  issue  his 

1  Plowd.  557  ;  Smith,  Real  &  Pers.  Prop.  103 ;  1  Cruise,  Dig.  65 ;  1  Atkin- 
son, Conv.  188. 

2  This  remark  should  not  be  understood  as  intending  to  embrace  estates  taiL 
Tud.  Cas.  613. 

3  1  Prest.  Est.  440;  Ayres  v.  Falkland,  1  Ld.  Raym.  326. 
*  1  Prest.  Est.  441 ;  Id.  440  ;  1  Atkinson,  Conv.  183. 

5  1  Prest.  Est.  440 ;  Tud.  Cas.  606. 

6  1  Prest.  Est.  475 ;  1  Atkinson,  Conv.  183 ;  1  Prest.  Abs.  378. 


CH.  III.]  ESTATES   IN   FEE-SIMPLE.  91 

estate  determines,  being  a  determinable  fee.  But  if  'the  one 
who  has  this  contingent  reversionary  right  or  possibility  release 
it  to  the  tenant  in  possession,  it  would  change  his  fee  deter- 
minaiDle  into  a  fee- simple  absolute.^  If  it  had  been  to  A  and 
his  heirs  till  B  returned  from  Rome,  and  B  had  died  at  Rome, 
the  estate  in  A  would  have  become  absolute  at  once.  The 
event  in  such  case  is  not  a  condition  but  a  limitation,  —  the 
state  is  to  endure  until  he  returns."-^ 

93.  So  if  the  estate  be  expressly  one  upon  condition,  and 
the  condition  be  performed,  the  condition  is  gone,  and  the 
estate  is  thereby  absolute.  Having  originally  been  as  to  its 
duration  a  fee,  liable  to  be  defeated  if  the  condition  was  not 
performed,  it  becomes  by  the  performance  at  once  a  fee-simple 
absolute.^  The  subject  of  estates  in  fee  upon  condition,  and 
the  familiar  conditional  estates  in  mortgage,  will  be  resumed 
in  its  proper  order. 

1  Walsingham'8  case,  Plowd.  557  ;  Ld.  Raym.  1148;  1  Prest.  Est.  482. 

2  1  Prest.  Est.  440-442  ;  Tud.  Cas.  606. 

«  1  Prest.  Est.  476  ;  1  Atkinson,  Conv.  183. 


92  LAW  OF  REAL  PROPERTY.  [BOOK  I. 


CHAPTER    IV. 

ESTATES  TAIL. 

1-3.  Origin  of  estates  tail. 

4,  5.  Such  estates  at  first  conditional  fees. 

6-8.  Origin  of  statute  De  Donis. 

9.  Estates  in  frank  marriage. 

10.  Provisions  of  tlie  statute  De  Donis. 

11-13.  Effects  of  that  statute  upon  estates,  real  and  personaL 

14-16.  Construction  put  upon  the  statute,  and  its  effect. 

17.  Attempts  to  defeat  the  statute. 

18.  Statute  evaded  by  fines  and  recoveries. 

19.  Common  recoveries  ;  form  of  proceeding. 

20.  Right  to  bar  them  incident  to  estates  tail. 

21.  No  permanent  entails  of  estates  now. 
22-24.  Estates  tail  Refined  and  illustrated. 

25.  Estates  tail  distinguished  from  estates  determinable. 

26,  27.  Estates  in  fee-simple  or  fee-tail  as  effected  by  terms  of  deeds. 

28.  Fees-tail  with  conditional  limitation. 

29.  No  estate  tail  in  a  freehold  or  chattel  interest. 

30.  Heirs  of  donee  in  tail  take  by  descent  and  not  by  purchase. 
81.  Heirs  in  tail  must  be  named  as  heirs  of  the  body. 

32.  Limitation  may  be  to  heirs  begotten  or  to  be  begotten. 

83,  34.  Estates  tail  general  and  special. 

35,  36.  If  special,  there  must  by  possibility  be  such  heirs. 

37.  In  special  tail,  the  descent  must  be  by  the  prescribed  lino. 

38-42.  Words  of  inlieritance  in  deeds  and  wills. 

43.  Rule  in  Shelley's  case. 

44,  45.  Rule  applied  to  estates  in  husband  and  wife. 

46.  Remainders,  when  contingent. 

47.  Effect  upon  devise  of  donee  dying,  living  devisor. 
48,  49.  Incidents  to  estates  tail.     Waste,  dower,  curtesy,  &c. 

50.  As  to  tenant  in  tail  paying  charges  on  the  estate. 

61.  Doctrine  of  merger  does  not  apply  to  estates  tail. 

52,  53.  Successive  descents  follow  the  rule  of  the  first. 

54-57.  Entailments  practically  avoided  by  usage  or  statute  conveyances. 

58,  59.  Estates  tail  after  possibility  of  issue  extinct. 

60,  61.  Estates  tail  in  the  United  States,  how  far  recognized. 

j^*ggj       uti    The  history  of  estates  tail  shows  that  they  were 

in  use  among  the  Saxons,  having  been  borrowed  from 

the  laws  of  Rome,  where,  by  way  of  fidei-coynmissa,  lands 


CH.  IV.]  ESTATES   TAIL.  93 

might  be  entailed  upon  children  and  freedmen  and  their 
descendants,  with  restrictions  as  to  alienation.  Under  the 
Saxons  the  owner  of  allodial  or  hoc-lands  might  convey  them 
absolutely,  or  grant  a  limited  interest  in  them,  reserving  the 
balance  of  the  ownership  to  himself,  which  he  might  convey 
to  another  at  his  pleasure.  So  he  might  settle  them  upon 
any  particular  class  of  descendants  in  succession.  And  the 
custom  of  settling  lands  upon  males  in  preference  to  females 
was  in  use  before  the  time  of  Alfred.^ 

2.  The  custom  of  conveying  lands  to  a  man,  or  a  man  and 
his  wife,  and  the  issue  of  a  particular  marriage,  or  to  a  man 
and  the  heirs  of  his  body,  or  some  particular  class  of  issue,  or 
heirs,  was  continued  after  the  Conquest.^ 

3.  Such  a  fee  or  feud  as  above  described  was  called  a 
feudum  talliatum,  from  tailler,  to  cut  or  mutilate.^ 

4.  Where  an  estate  was  given  in  such  a  form,  it  was  held  to 
be  a  conditional  fee,  that  is,  if  the  donee  should  not  have  heirs 
or  issue  according  to  the  prescribed  description,  the  land 
should  revert  to  the  donor  ;  but  if  the  condition  was  performed 
by  the  birth  of  such  heirs  presumptive,  or  issue,  the  donee  was 
held  to  have  a  fee-simple,  so  far  that  he  might  charge  or  alien 
the  land  as  a  fee-simple  estate.^ 

5.  Such  was  the  case  up  to  the  time  of  Edward  I. 
These    *were    called    fees-simple     conditional.      But  [*67] 
though  liable  to  be  changed  into  fees  absolute  in  the 
manner  above  stated,  if  they  descended  to  the  issue,  and  the 
issue  became  extinct  before  ahenation  made,  they  reverted  to 
the  donor.^ 

6.  Previous  to  this  time,  too,  the  nobility  and  great  landed 
proprietors,  in  order  to  preserve  their  lands  within  their  own 

1  1  Spence,  Eq.  Jur.  21 ;  Barring.  Stat.  113.  2  i  Spence,  Eq.  Jur.  140. 

3  2  Bl.  Com.  112,  n. 

4  1  Spence,  Eq.  Jur.  141  ;  Co.  2d  Inst.  333  ;  Tud.  Cas.  607 ;  Co.  Lit.  19  a ;  2 
Bl.  Coal.  111.  Lord  Mansfield  said  :  "  I  cannot  agree  with  the  argument  that  on  the 
performance  of  the  condition  by  birth  of  a  child,  the  estate  becomes  absolute. 
It  was  so  by  a  subtlety  in  odium  of  perpetuity  and  for  the  special  purpose  of 
alienation,  but  for  no  other.  It  otherwise  reverted  to  the  donor,  on  failure  of  tlie 
issue,  according  to  the  original  restriction."  Buckworth  v.  Thirkell,  3  B.  &  P. 
652,  n.  Ford  v.  Flint,  40  Vt.  392  ;  Finch,  121,  122.  "  But  if  the  issue  fail  be- 
fore the  alienation,  the  donor  or  giver  shall  have  it." 

5  1  Spence,  Eq.  Jur.  141 ;  Co.  Lit.  19  a,  and  note  110;  2d  Inst.  332. 


94  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

families,  had  been  accustomed  to  settle  them  upon  their  oldest 
sons  and  their  issue,  and,  upon  the  failure  of  such  issue,  upon 
the  second  sons  and  their  issue,  by  way  of  remainder,  and  so 
on,  with  restrictions  against  alienation.  But  the  adoption  of 
the  doctrine  of  conditional  fees  tended  to  defeat  this  intended 
entailment,  and  led  the  barons  to  appeal  to  Edward  I.  to 
restore  the  ancient  law  of  Alfred  for  the  preservation  of  entails.^ 

7.  This  led  to  the  enactment  of  the  famous  statute  Be 
Donis  Conditlonalihus  (13  Edw.  I.  Stat.  1,  c.  1,  §  2).  But 
before  stating  the  substance  of  this  statute,  a  brief  explanation 
is  necessary. 

8.  In  tracing  the  history  of  the  descent  of  estates,  children 
first  succeeded  to  the  feud  in  place  of  their  fathers,  and  grand- 
children in  the  place  of  children.  Brothers  might  succeed  to 
brothers,  in  the  want  of  children,  if  the  feud  was  an  ancient 
one.  The  admission  of  collateral  relations  of  the  blood  of  the 
first  feudatory  was  the  last  step  in  the  law  of  descent.^ 
"  Heirs,"  therefore,  as  at  first  used,  meant  the  issue  of  the 
tenant  or  vassal,  to  the  exclusion  of  all  collateral  relations. 
But  by  the  time  of  Henry  IL,  collateral  kindred  had  been 
admitted  as  heirs,  and  if  a  donor  wished  to  confine  the  inher- 
itance to  the  offspring  of  the  donee,  he  was  obliged  to  limit  it 
expressly  to  him  and  the  heirs  of  his  body.^ 

9.  This  was  construed  a  conditional  fee,  as  is  above  stated. 
And  there  was  one  other  conditional  estate  of  inheritance 
which  is  referred  to  in  the  statute,  and  it  is  mentioned  here  in 

order  to  explain  it,  and  that  was  frank  marriage,  which 
[*68]  applied  to  a  case  *  where  a  father  or  kinsman,  upon  a 

person  marrying  his  daughter  or  cousin,  gave  them 
lands,  and  it  was  understood  to  be  upon  the  condition  that 
these  were  to  descend  to  the  issue  of  such  marriage,  if  any. 
If  the  donees  had  issue,  the  condition  was  considered  as  hav- 
ing been  performed,  and  the  estate  thereby  became  alienable.^ 

10.  The  statute  De  'Donis  recites,  by  way  of  preamble,  the 
custom  of  giving  lands  to  a  man  and  his  wife  and  to  the  heirs 
begotten  of  their  bodies,  with  an  express  condition  of  reverter 
upon  the  failure  of  such  heirs.     Also  the  custom  of  giving 

1  1  Spence,  Eq.  Jur.  141.  2  Wright,  Ten.  16-18 ;  2  Bl.  Com.  220-222. 

3  2  Bl.  Com.  221 ;  Wms.  Real  Prop.  31,  32.  *  1  Cruise,  Dig.  71. 


CH.  IV.]  ESTATES  TAIL.  95 

lands  in  frank  marriage  which  contains  an  implied  condition 
of  reverter  if  the  husband  and  wife  die  without  heirs  of  their 
bodies,  and  also  of  giving  land  to  another  and  the  heirs  of  his 
body  issuing.  It  then  recites  the  custom  above  referred  to,  of 
aliening  lands  after  issue  born,  "  to  disinherit  their  issue  of  the 
land  contrary  to  the  minds  of  the  givers,  and  contra  formam  in 
dono  expressam.''''  It  then  declares,  in  substance,  that  the  will 
of  the  giver,  according  to  the  form  in  the  deed  of  gift  mani- 
festly expressed  (^secundum  formam  in  charta  doni  sui},  should 
from  henceforth  be  observed,  so  that,  among  other  things, 
they  to  whom  the  land  was  given  under  such  condition  should 
have  no  power  to  alien  the  land  so  given,  but  it  should  remain 
unto  the  issue  of  them  to  whom  it  was  given  after  their  death, 
or  should  revert  unto  the  giver  or  his  heirs,  if  issue  fail,  &c.^ 

11.  The  effect  of  this  was,  to  divide  the  entire  inheritance 
into  two  parts  or  estates,  namely,  the  estate  tail  and  the  re- 
version or  remainder  in  fee  expectant  upon  the  failure  of  the 
estate  tail.^ 

12.  In  translating  this  statute  from  the  Latin  in  which  it 
was  written,  the  word  lands  is  used  where  the  original  word 
was  tenementum,  which,  in  fact,  embraces  not  only  corporeal 
hereditaments  but  incorporeal  also  which  issue  out  of  or  are  an- 
nexed to  those  that  are  corporeal,  such  as  rents,  estovers,  and 
commons,  though  they  cannot  be  said  to  lie  in  tenure.^ 

*13.  But  an  inheritance  merely  personal,  or  such  as   [*69] 
is  to  be  exercised  about  chattels,  cannot  be  the  subject 
of  inheritance.* 

14.  The  statute  De  Bonis  was  regarded  by  the  courts  as  a 
remedial  one,  and  instead  of  confining  it  to  the  precise  cases 
enumerated  in  it,  they  regarded  these  as  put  by  way  of  exam- 
ple. And  the  effect  of  it  was  to  introduce  a  new  class  of 
estates  or  give  a  different  quality  to  an  old  one.^  It  was  con- 
sidered as  designed  to  preserve  the  property  and  maintain  the 

1  2(1  Inst.  332,  333  ;  2  Prest.  Est.  878. 

2  Atkinson,  Conv.  194.  This  statute,  commonly  known  as  that  of  Westmin- 
ster 2,  is  generally  supposed  to  have  introduced  estates  tail  into  the  English  law. 
But  it  would  be  more  accurate  to  say  that  it  established  them  there.  Barring. 
St.  113.  3  2  Bl.  Com.  113 ;  Co.  Lit.  19  b 

4  2  Bl.  Com.  113  ;  Co.  Lit.  20  a,  and  note  120. 

5  2  Prest.  Est.  380  ;  Id.  453. 


96  LAW  OF  EEAL  PROPERTY.  [BOOK  I. 

grandeur  of  existing  powerful  families,  by  securing  to  owners 
of  estates  the  liberty  to  dispose  of  such  parts  thereof  as  came 
under  the  denomination  of  tenernents,  in  such  manner,  and 
by  such  an  order  of  succession,  as  their  own  inclination  or  in- 
genuity might  devise.^ 

15.  The  statute,  in  its  several  bearings,  was  slowly  devel- 
oped, and  it  was  not  until  the  time  of  Edward  III.  that  it 
was  settled  that  an  estate  limited  to  one  and  the  heirs  male 
of  his  body,  would  be  confined  in  its  descent  to  males  alone. 
And  it  was  long  doubted  whether  an  entailment  to  heirs 
female  could  keep  the  succession  in  "the  line  of  females  trac- 
ing descent  through  females. ^ 

16.  The  fruits  of  these  entailments  at  last  began  to  mani- 
fest themselves.  Children,  being  independent  of  their  par- 
ents, grew  disobedient.  Creditors  could  no  longer  enforce 
payment  out  of  the  lands  of  their  debtors.  Lands  were  with- 
drawn from  commerce,  or  purchasers  were  defrauded  by  se- 
cret entails.  And  the  crown  even  lost  its  restraint  upon 
treasonable  practices  through  the  terror  of  forfeitures,  until 
at  length  the  desire  grew  general  to  rid  the  land  of  a  law 
fraught  with  so  many  evils. 

17.  Every  attempt,  however,  to  change  the  law  was  met  by 
the  resistance  of  powerful  landholders,  for  whose  benefit  it 
had  been  made,  and  it  was  only  after  an  endurance  of  two 
hundred  years  that,  by  a  contrivance  of  the  courts  and  a 
bold  measure  of  judicial  legislation,  this  act  of  Parliament 
was  evaded  by  enabling  the  tenant  to  change  his  fee-tail  into 

a  fee-simple.^ 
[*70]       *18.  This  was  accomplished,  to  a  limited  extent,  by 

means  of  levying  fines,  but  fully  and  completely  by 
means  of  common  recoveries.  These  were  borrowed  from 
the  "  ces&io  in  jure  "  of  the  Roman  law.*  These,  though  now 
abolished  in  England  by  the  statutes  3  &  4  Wm.  IV.  c.  74,  and, 
so  far  as  fines  are  concerned,  having  prevailed  in  this  country 

»  2  Bl.  Com.  116  ;  2  Prest.  Est.  453.  2  2  Prest.  Est.  453. 

3  Taltarum's  case,  Year  Book,  12  Edw.  IV.  19  ;  2  Bl.  Com.  116  ;  Wms.  Real 
Prop.  39  ;  2  Prest.  Est.  454  ;  Tud.  Cas.  608  ;  10  Rep.  37  a.  Tliis  was  done,  says 
Spence,  by  the  judges  in  tlie  reign  of  Edw.  IV.,  "  in  the  exercise  of  their  Pre 
torian  authority."     1  Spence,  Eq.  Jur.  143. 

*  Maine,  Anc.  L.  289 ;  Gaius,  C.  I.  §  134  n ;  C.  II.  §  24. 


CH.  IV,]  ESTATES   TAIL.  97 

in  but  very  few  of  the  States,  and  as  to  recoveries  to  a  cer- 
tain extent  only,  have  played  too  important  a  part  for  cen- 
turies, in  English  conveyancing,  to  be  passed  over  unnoticed. 
Fines  are  said  to  have  been  in  use  from  a  very  early  period  of 
the  English  history.  They  consisted  of  a  suit  brought  between 
actually  litigating  parties,  where,  by  permission  of  the  court, 
they  entered  a  final  agreement,  finalis  concordia,  upon  the 
record,  which  was  binding  upon  them  like  any  judgment  of 
court.  When  applied  to  bar  entails,  some  one  to  whom  it 
was  to  be  conveyed,  acting  in  collusion  with  the  tenant, 
brought  a  feigned  action  against  him  for  the  land.  The 
finalis  Concordia^  of  course,  was  thereupon  entered  into  be- 
tween them,  for  form,  and  became  a  matter  of  record, 
whereby  the  claimant's  right  to  the  land  was  admitted  and 
established.  The  statute  De  Bonis  declared  that  such  fines 
should  not  bar  entails.  But  one  passed  4  Hen.  VII.,  and 
one  in  32  Hen.  VIII.,  allowed  them  to  bar  heirs  claiming 
under  the  entail.^ 

19.  The  process  above  described  was  called  "levying  a 
fine,"  and  was  much  in  use  in  barring  adverse  claims  by  "  non 
claim,"  as  it  was  called.  But  the  mode  of  barring  estates  tail 
which  came  into  use  after  Taltarum's  case  (12  Edw.  IV.  A.  D. 
1472),  and  the  only  effectual  mode,  was  a  common  recovery. 
This  too,  it  seems,  had  been  in  use  before  the  statute  De  Bonis, 
and  had  been  contrived  as  a  mode  of  evading  the  statutes  of 
mortmain  ;  but  was  j3ut  an  end  to  for  that  purpose  by  the  stat- 
ute 13  Edw.  I.  c.  32.2  Xhis  was  a  fictitious  suit  brought  in  the 
name  of  the  person  who  was  to  purchase  the  estate,  against  the 
tenant  in  tail  who  was  willing  to  convey.  The  tenant,  instead 
of  resisting  this  claim  himself,  under  the  pretence  that 
he  had* acquired  his  title  of  some  third  person  who  [*71] 
had  warranted  it,  vouched  in,  or  by  a  process  from  the 

1  1  Spence,  Eq.  Jur.  143 ;  2  Flint,  Real  Prop.  673 ;  Shelf.  R.  P.  Stat.  275 ; 
Tud.  Cas.  689.  A  case  of  the  levy  of  a  fine  occurred  in  New  York  in  1827. 
Fines  were  abolished  there  in  1830.  McGregor  v.  Comstock,  17  N.  Y.  162.  Fines 
and  recoveries  were  abolished  in  New  Jersey  in  1799 ;  Croxhall  r.  Sherard,  5 
Wall.  268;  but  fines  were  in  force  in  Pennsylvania  in  1837;  4  Kent,  Com.  497, 
note ;  Richman  v.  Lippincott,  5  Dutch.  44.  Fines  never  were  known  in  Missouri. 
Moreau  v.  Detchemendy,  18  Mo.  527. 

^  Wms.  Real  Prop.  39;  2  Bl.  Com.  271;  1  Spence,  Eq.  Jur.  144,  n.;  7ud. 
Cas.  6U7. 

.      VOL.    I.  7 


98  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

court,  called  this  third  person,  technically  the  vouchee,  to  come 
in  and  defend  the  title.  The  vouchee  came  in,  as  a  part  of 
the  dramatis  personce  of  this  judicial  farce,  and  then  without 
saying  a  word  disappeared  and  was  defaulted.  It  was  a  prin- 
ciple of  the  feudal  law  adopted  thence  by  the  common  law, 
that  if  a  man  conveyed  lands  with  a  warranty,  and  the 
grantee  lost  his  estate  by  eviction  by  one  having  a  better  title, 
he  should  give  his  -warrantee  lands  of  equal  value  by  way  of 
recompense.  And  as  it  would  be  too  barefaced  to  cut  off  the 
rights  of  reversion  as  well  as  of  the  issue  in  tail,  by  a  judg- 
ment betw^een  the  tenant  and  a  stranger,  it  was  gravely  ad- 
judged, 1st,  that  the  claimant  should  have  the  land  as  having 
the  better  title  to  it ;  and  2d,  that  the  tenant  should  have 
judgment  against  his  vouchee  to  recover  lands  of  equal  value 
on  the  ground  that  he  was  Avarrantor,  and  thus,  theoretically, 
nobody  was  harmed.  If  the  issue  in  tail,  or  the  reversioner, 
or  remainder-man,  lost  that  specific  estate,  he  was  to  have 
one  of  equal  value  through  this  judgment  in  favor  of  the 
tenant  in  tail,  whereas  in  fact  the  vouchee  was  an  irresponsi- 
ble man,  and  it  was  never  expected  that  he  was  anj^thing 
more  than  a  dummy  in  the  game.^  The  result  of  this,  which 
Blackstone  calls  "  a  kind  of  pia  fraus  to  elude  the  statute  De 
Donis,^'^  and  another  writer  "a  piece  of  solemn  juggling,"^ 
w^as  that  the  lands  passed  from  the  tenant  in  tail  to  the  claim- 
ant in  fee-simple,  free  from  the  claims  of  reversioner,  re- 
mainder-man, or  issue  in  tail,  and  he  either  paid  the  tenant 
for  it  as  a  purchaser,  or  conveyed  it  back  to  him  again  in  fee- 
simple.* 

19  a.  A  common  recovery  by  a  tenant  in  tail  has  the  effect 
to  bar  his  estate  tail  and  all  remainders  over  and  reversion  de- 
pending on  that  estate,  and  all  conditions  and  collateral  limi- 
tations annexed  to  the  same  estate.^  And  it  is  held  that  an 
executory  devise  may  be  destroyed  by  a  common  recovery 

1  2  Flint,  Eeal  Prop.  673,  674 ;  1  Spence,  Eq.  Jur.  143. 

2  2  151.  Com.  117.  3  3  VVms.  Real  Prop.  41. 

*  1  Spence,  Eq.  Jur.  144.  Taltarum's  case  is  reported  in  Year  Book,  12  Edw. 
IV.  19,  and  is  translated  into  English  in  Tud.  Cas.  562.  See  Shelf  R.  P.  Stat. 
276.  A  similar  proceeding  prevailed  in  the  Roman  law  under  the  name  of  ces- 
sio  in  jure,  and  with  the  same  effect  as  at  common  law.     Maine,  Anc.  L.  289. 

5  2  Prest.  Est.  460 ;  Pigott,  Recoveries,  21 ;  Page  v.  Hayward,  2  Salk.  570. 


CH.  IV.]  ESTATES   TAIL.  99 

suffered  by  the  tenant  in  tail  which  enlarges  his  estate  into  a  fee, 
and  excludes  all  subsequent  limitations  whether  in  remainder 
or  by  way  of  springing  use  or  executory  devise. •  So  a  recov- 
ery suffered  by  a  tenant  for  life,  will  cut  off  a  contingent,  but 
not  a  vested  remainder.^ 

20.  A  right  thus  acquired  of  barring  them  seems  to  have 
become,  in  the  theory  of  the  law,  an  inherent,  inseparable  in- 
cident to  estates  tail,  so  that  any  attempt  to  restrain  the 
exercise  *of  it  by  the  tenant,  by  covenant  or  condition,   [*72] 
was  futile,  as  such  restraint  was  held  to  be  void.^ 

21.  The  consequence  was,  that  the  possibility  of  entailing 
estates  in  England  for  any  considerable  length  of  time  was 
and  still  is  practically  done  away  with.  To  accomplish  it  re- 
quires frequent  resettlements  of  the  estate  on  successive  gen- 
erations, by  means  of  mari-iage  settlements,  which  have 
become,  in  consequence,  a  very  common  measure  there.  In 
this  country,  estates  tail,  as  a  distinctive  class,  are  abolished 
in  many  of  the  States.  In  others  where  they  are  still  retained, 
they  may  be  barred,  usually,  by  a  simple  deed  by  the  tenant, 
—  it  being  the  policy  of  the  law  in  both  countries  to  favor  the 
free  alienation  of  all  kinds  of  property.^  The  deed  of  an  in- 
fant or  non  compos  tenant  in  tail  may  be  impeached,  but  a 
judgment  against  such  tenant  in  suffering  a  recovery  could 
not  be,  collaterally.^ 

22.  Estates  tail,  then,  are  estates  of  inheritance,  which,  in- 
stead of  descending  to  heirs  generally,  go  to  the  heirs  of  the 
donee's  body,  which  means  his  lawful  issue,  his  children,  and 
through  them  to  his  grandchildren  in  a  direct  line,  so  long  as 
his  posterity  endures  in  a  regular  order  and  course  of  descent, 
and  upon  the  death  of  the  first  owner  without  issue,  the  es- 
tate determines.^  A  devise  to  one's  sons,  and,  in  case  one  of 
them  dies  unmarried,  or  without  issue,  his  share  to  be  divided 
among  the  survivors,  creates  an  estate  tail  in  the  sons,  with 
remainders  over   to    the    survivors.'^      So  where  the  devise 

1  Taylor  v.  Taylor,  63  Penn.  St.  485.        2  Doe  v.  Gatacre,  5  Bing.  N.  C.  G09. 

3  Co.  Lit.  379  b,  n.  300;  1  Spence,  Eq.  Jur.  144,  n. 

<  Wms.  Keal  Prop.  45,  46.  6  "Wootl  v.  Black,  63  Penn.  St.  320. 

6  2  Prest.  Est.  360;  Id.  374;  1  Id.  451 ;  Wms.  Real  Prop.  3  J. 

1  Matlackv.  Roberts,  54  Penn.  St.  148;  Allen  v.  Trustees,  102  Mass.  262, 


100  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

was  to  a  daughter,  but  if  she  died  without  heirs,  then  to  go 
to  her  brother,  it  was  held  to  mean  heirs  of  her  body,  because 
if  to  her  heirs  generally,  her  brother  would  be  one  of  these 
and  take  by  descent.^ 

23.  The  one  who  makes  the  estate  is  called  the  donor;  he 
to  whom  it  is  made,  the  donee.  In  order  to  create  an  estate 
tail  there  must  be  a  limitation  in  express  terms  or  by  direct 
reference  not  only  to  heirs,  but  to  heirs  of  the  donee's  body. 
If  it  be  to  a  man  and  his  heir,  it  will  not  ordinarily  pass  an 
estate  of  inheritance,  though  in  a  will  it  may,  on  the  ground 
of  carrying  out  the  devisor's  intention.^ 

24.  An  instance  of  an  estate  tail  by  construction,  where 
there  is  no  direct  limitation  to  the  heirs  of  the  donee's  body, 
would  be  an  estate  to  A,  with  a  proviso  that  if  he  shall  die 
without  heirs  of  his  body,  the  estate  shall  revert  to  the  donor, 
or  go  over  to  one  in  remainder.     Here,  it  will  be  perceived, 

there  was  no  direct  limitation  to  the  heirs  of  A,  and  it 
[*73]   is  too  plain  for  doubt  *that  the  donor  intended  the 

heirs  of  his  body  should  take  it  at  his  decease,  for  he 
gives  it  over,  or  reserves  it,  in  case  he  has  no  such  heirs,  and 
only  in  that  contingency.^  So  a  limitation  to  A  B  and  his 
heirs,  and  if  he  die  without  issue  of  his  body,  then  remainder 
over  to  some  other  person,  it  would  by  this  clause,  as  to  issue  of 
his  body,  be  understood  as  restricting  the  general  Avord  heirs 
to  heirs  or  issue  of  the  donee's  body.* 

25.  But  if  the  gift  be  to  A  and  his  heirs,  so  long  as  he,  or 
some  other  person  named,  has  heirs  of  his  body,  it  is  a  fee- 
simple  determinable,  and  not  an  estate  tail.  The  heirs  who 
may  take  are  unlimited,  but  the  duration  of  their  estate  is 
limited  and  measured  by  the  length  of  time  that  the  line  of 
succession  of  heirs  of  the  donee's  body,  or  of  the  other  person 
named,  may  last.^ 

26.  And  a  deed  to  A  and  his  heirs  of  lands,  to  have  and  to 

1  Fahrney  v.  Holsinger,  65  Penn.  St.  39 ;  Sheets  i'.  Rambo,  57  Penn.  St.  149. 

2  1  Prest.  Est.  451 ;  2  Prest.  Est.  3'.)7,  398 ;  White  v.  Collins,  Com.  289. 
8  Perkins,  §  173. 

*  Per  Ld.  Holt,  Idle  v.  Cooke,  2  Ld.  Raym.  1152 ;  Brice  v  Smith,  Willes,  1 ; 
Hulburt  ».  Emerson,  16  Mass.  241 ;  2  Prest.  Est.  519 ;  Hayward  v.  Howe,  12 
Gray,  49. 

8  2  Prest.  Est.  358-360;  Id.  361;  2  Bl.  Com.  113. 


CH.  IV.]  ESTATES   TAIL.  101 

hold  {habendum'),  to  tlie  heirs  of  his  body,  limits  and  qualifies 
the  estate  otherwise  a  fee-simple,  and  reduces  it  to  an  estate 
tail,  defining  in  effect  in  the  second  clause  what  was  meant  by 
"  heirs  "  in  the  first.^ 

27.  On  the  other  hand,  if  the  first  grant  had  been  to  A  and 
the  heirs  of  his  body  with  the  habendum  to  A  and  his  heirs, 
without  any  terms  of  restriction,  the  courts,  in  order  to  give 
effect  to  both  clauses,  if  possible,  would  hold  that  he  first 
creates  an  estate  tail,  and  that  so  long  as  he  has  issue  to  take 
they  will  take  as  tenants  in  tail.  But  if  at  any  time  such  line 
of  issue  fail,  then  the  estate  would  go  to  his  heirs  generally, 
so  that  he  is  said  to  take  an  estate  tail  m  prcesenti,  with  an 
estate  in  fee-simple  in  expectancy.^ 

28.  Much  that  has  been  said  in  a  former  chapter  in  relation 
to  fees  being  determinable  upon  the  happening  of  some  event, 
applies  to  fees  tail,  as  an  estate  to  one  and  the  heirs  of 

his  *  body,  so  long  as  a  tree  shall  stand,  or  until  A  shall  [*74] 
return  from  Rome,  or  until  the  donee  shall  do  some 
]3rescribed  act,  or  some  such  act  be  done  by  some  third  per- 
son. So  the  estate  may  be  defeasible  by  the  happening  of 
some  condition.  So  it  may  be  limited  to  one  and  the  heirs 
of  his  body,  tenants  of  the  manor  of  Dale,  and  the  like.  The 
same  rule  applies  in  these  cases  as  has  been  stated,  heretofore, 
in  relation  to  fees-simple  determinable  and  upon  condition,  as 
to  the  estate  being  defeated  or  defeasible  thereby.^ 

29.  It  has  already  been  stated  that  an  estate  tail  is  one  of 
inheritance,  and  therefore  cannot  exist  in  respect  to  a  mere 
freehold  estate  for  life  or  in  a  chattel  interest.  And  a  limi- 
tation,' in  terms,  which  would  create  an  estate  tail  if  applied 
to  real  estate,  would  vest  the  whole  interest  absolutely  in  the 
first  taker  if  employed  as  to  chattels  or  chattel  interests  in 
lands,  and  a  limitation  of  chattels  over  to  the  issue  of  the  first 
taker  would  be  void,  because  the  statute  Be  Bonis  applies 
only  to  lands  and  tenements.'^ 

1  2  Prest.  Est.  509  ;  Altham's  case,  8  Eep.  154  b. 

2  Perkins,  §  168  ;  Co.  Lit.  21  a ;  Altham's  case,  8  Eep.  154  b ;  Corbin  v.  Healy, 
20  Pick.  515.  3  2  Prest.  Est.  3G2;  Id.  44G. 

4  2  Bl.  Com.  113  ;  Whitmore  v.  Weld,  1  Vern.  326  and  343,  n. ;  Co.  Lit.  20  a, 
and  n.  120;  Child  v.  Baylie,  Cro.  Jac.461 ;  Atkinson  '•.  Hutchinson,  3  P.  Wms, 
259;  2  Jarman  on  Wills,  489,  and  Perkins's  note;  Britton  v.  Twining,  3  Meriv. 
183  ;  Stockton  v.  Martin,  2  Bay,  471 ;  Wms.  Ex.  565;  Id.  949;  ante,  pi.  12,  13. 


102  LAW  OF  REAL  PROPERTY.  [BOOK  1. 

30.  In  all  cases  where  the  heirs  of  a  donee  in  tail  take  the 
estate,  they  do  so  by  descent  and  not  by  purchase.  But  the 
heirs  in  such  case  do  not  claim  the  estate  as  coming  from  their 
ancestor  as  its  source,  but  as  an  estate  coming  through  him 
as  sj)ecial  heir,  which  he  cannot  intercept  except  in  the  mode 
provided  by  law.^  But  if  the  limitation  were  to  the  heirs  of 
the  body  of  A,  whoever  answers  to  that  description  would 
take  as  purchasers,  and  the  estate  would  then  descend  to  the 
same  issue  and  in  the  same  order  of  succession  as  if  the  estate 
had  been  limited  to  A  and  the  heirs  of  his  body.^  Under  the 
doctrine  of  entails,  the  form  of  the  gift,  rather  than  the  gen- 
eral canons  of  descent  of  estates,  is  to  be  referred  to  to  deter- 
mine the  line  of  succession  in  which  the  estate  is  to  pass.^ 

31.  It  is  therefore  requisite,  in  order  to  create  such  an 
estate,  that,  in  addition  to  the  word  heirs,  there  should  be 
words  of  jDrocreation    which  indicate  the  body  from  which 

these  heirs  are  to  proceed,  or  the  person  by  whom  be- 
[*7o]  gotten.     If  this  is  *  done,  it  may  not  be   necessary  to 

make  use  of  the  w^ords  "of  the  body,"  if,  by  the 
description,  it  appears  that  they  are  to  be  the  issue  of  a  par- 
ticular person.'*  A  general  limitation  to  a  man  and  the  heirs 
of  his  body  is  sufficient,  it  being  immaterial  of  whom  be- 
gotten.^ 

32.  The  form  of  limiting  the  estate,  whether  it  be  to  one 
and  the  heirs  of  his  body  begotten,  or  to  such  heirs  to  be  be- 
gotten, is  immaterial,  for  in  the  former  case  it  would  extend 
to  children  born  after  the  gift,  and  in  the  latter  would  em- 
brace those  already  born.^ 

33.  The  estates  thus  far  spoken  of  come  within  the  class  of 
estates  tail  general,  which  are  such  as  are  limited  to  a  man 
and  the  heirs  of  his  body  without  any  further  specification. 
But  there  is  a  class  of  these  which  are  called  estates  tail  spe- 
cial, wdiere  the  limitation  is  to  some  particular  class  of  heirs 
of  the  body  of  the  donee,  as  to  those  begotten  on  his  Avife 
Mary,  and  the  like.     So  it  maybe  to  the  heirs  male  or  female 

1  Perry  v.  Kline,  12  Cush.  127.  2  2  Prest.  Est.  360 ;  Id.  375. 

3  2  Prest.  Est.  375. 

*  2  Prest.  Est.  478;  Co.  Lit.  20  b;  2B1.  Com.  116.  6  2  Prest.  Est.  412. 

«  2  Prest.  Est.  449,  450. 


CH.  IV.]  ESTATES   TAIL.  103 

of  the  body  of  the  donee,  making  an  estate  tail  male  or  an  es- 
tate tail  female.  Such  limitations  as  these  confine  the  inher- 
itance to  tiie  special  issue  prescribed,  and  none  other  can 
succeed  to  it.  Thus,  if  the  estate  be  limited  to  a  man  and 
the  lieirs  of  his  body  by  his  first  wife,  and  she  die  without 
issue,  no  issue  by  any  other  wife  could  claim  the  inheritance.-^ 

34.  If,  for  instance,  the  gift  be  to  A  and  the  heirs  of  his 
body,  on  liis  wife  Mary,  begotten,  it  presupposes  that  he  then 
has  a  wife  of  that  name.  And  if  such  is  not  the  case,  the  gift 
would  fail.  But  if  it  be  to  A  and  the  heirs  of  the  body  of  B 
his  wife,  who  is  dead,  it  is  an  estate  tail,  if  there  are  any  issue 
of  that  wife  living  when  the  gift  is  made.  But  if  there  are 
no  such  issue  living,  instead  of  his  becoming  tenant  in  tail,  he 
is  merely  tenant  for  his  own  life.  He  is  not  even  tenant  in 
tail  after  possibility  of  issue  extinct,  which  will  be  hereafter 
explained.^ 

35.  In  order  to  have  a  limitation  in  special  tail  good 
where  *  the  issue  is  to  be  begotten  of  some   woman  [*76] 
named,  she  must  either  be  the  donee's  wife  or  one  who 

by  possibility  may  become  such.  If,  for  instance,  she  was  so 
near  akin  to  the  donee  as  to  render  it  unlawful  for  them  to 
marry,  the  estate  would  be  in  him  only  for  life.^ 

36.  But  it  is  immaterial  how  improbable  it  may  be  that  the 
donee  may  ever  marry  the  woman  named,  or  impossible  that 
if  married  they  should  ever  have  issue.  Thus,  suppose  the 
donee  is  married  at  the  time,  and  the  woman  named  is  the 
wife  of  another,  it  is  enough  that  possibly  his  wife  and  the 
husband  of  the  other  woman  may  die,  and  he  and  she  may 
intermarry  and  have  issue,  however  improbable.  So  if  the 
donee  and  the  woman  named  are  married  at  the  time  of  the 
gift,  and  the  estate  is  limited  to  him  and  the  heirs  of  his  body 
on  such  wife  begotten,  it  would  be  an  estate  tail,  though  she 
was  at  the  time  an  hundred  years  old,  and  would  not  be  an 
estate  tail  after  possibility  of  issue  extinct  so  long  as  the 
parties  named  are  living.* 

37.  Where  the  limitation  is  to  one  and  the  heirs  male,  or 

1  2  Bl.  Com,  113,  114  ;  1  Spence,  Eq.  Jur.  141  ;  2  Prest.  Est.  413,  414  ;  Id.  420. 

2  2  Prest.  Est.  414  ;  Co.  Lit.  27  a,  n.  155  ;  post,  p.  *83. 

8  2  Prest.  Est.  417.  <  Id.  396. 


104  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

to  him  and  the  heirs  female  of  his  body,  it  confines  the  in- 
heritance to  the  one  line  and  excludes  the  other  from  the 
succession.  So  that  whoever  claims  by  descent  must  be  able 
to  trace  his  or  her  line  back  to  the  donee  through  males  alto- 
gether or  females  altogether.  And  this  case  is  put  by  way  of 
illustration.  Estate  to  A  and  the  heirs  male  of  his  body,  re- 
mainder to  the  heirs  female  of  his  body.  Here  there  are  two 
lines.  If  the  males  run  out,  the  estate  will  then  go  by  way 
of  remainder  to  his  heirs  female.  If  then  the  donee  were  to 
have  a  son  who  has  a  daughter  'who  has  a  son,  this  son  last 
named  could  take  nothing,  since,  being  a  male,  he  cannot 
trace  through  his  mother,  and  she,  being  a  female,  could  not 
trace  through  her  father,  and  the  land  in  such  a  case  would 
revert  to  the  donor.  Had  the  remainder  been  to  the  heirs  of 
his  body  generally,  it  might  have  descended  in  the  case  sup- 
posed to  the  great-grandson  of  the  donee. ^ 

38.  In  regard  to  making  use  of  proper  technical  terms 
[*77]  in  *  creating  estates  tail  by  deed  and  by  will,  the  same 
rules  of  strictness  or  latitude  apply  as  in  the  manner 
of  estates  in  fee-simple.  Thus  a  grant  to  a  man  and  his  heirs 
male,  by  deed,  Avould  be  construed  to  create  a  fee-simple  for 
want  of  the  requisite  words,  "  of  his  body,"  or  their  equiva- 
lent. But  if  it  had  been  by  will,  the  law,  to  carry  out  testa- 
tor's intention,  would  supply  these  words  and  regard  it  a  fee- 
tail.2 

39.  Among  the  illustrations  given  of  estates  tail  having 
been  created  by  deed  without  the  use  of  the  words,  "  of  the 
bod}^"  but  with  words  regarded  as  equivalent,  are — to  A 
and  his  heirs,  namely,  the  heirs  of  his  body  —  or  of  himself 
lawfully  issuing  or  begotten  —  or  of  his  flesh,  or  of  his  wife 
begotten,  — or  which  he  shall  happen  to  have  or  beget.^ 

40.  And  yet  if  the  word  "  heirs  "  is  wanting,  the  estate  is 
only  one  for  life,  though  terms  of  entailment  even  stronger 
than  those  above  mentioned  were  used.  Thus  a  grant  to  A 
and  his  issue  of  his  body,  or  to  him  and  his  seed,  or  to  him 

1  Co.  Lit.  25  b  ;  2  Bl.  Com.  1 L4  ;  2  Prest.  Est.  402, 403  ;  Wms.  Real  Prop.  30 ; 
Hulburt  V.  Emerson,  16  Mass.  24L 

2  2  Bl.  Com.  115;  Co.  Lit.  27  a ;  2  Prest.  Est.  536. 

3  Co  Lit.  20  b  ;  2  Prest.  Est.  485. 


CH.  IV.]  ESTATES   TAIL.  105 

and  his  children  or  offspring,  would  only  create  an  estate  for 
life,  provided  the  estate  be  created  by  deed.^ 

41.  So  a  gift  to  A  and  his  eldest  son  and  heir  male  of  the 
saiil  A  begotten,  was  held  not  to  be  an  estate  tail,  the  words 
heir  male  being  qualified,  explained,  and  limited  to  be  the 
same  thing  as  son,  a  description  of  the  person  to  take,  and 
not  a  term  of  limitation  and  inheritance.^ 

42.  But  where  the  gift  was  by  devise  to  a  man  and  his  seed, 
or  his  heirs  male,  or  his  children,  if  he  then  have  none,  or  to 
him  and  his  posterity,  or  by  other  words  showing  an  intention 
to  restrain  the  inheritance  to  the  descendants  of  the  devisee, 
it  would  create  an  estate  tail.^  Thus  a  devise  to  J.  S.  and 
his  heirs,  if  he  should  have  lawful  issue,  but  if  he  die  without 
issue,  then  over,  would  create  an  estate  tail  in  J.  S.* 

43.  There  is  a  rule  in  respect  to  the  nature  of  estates,  which 
prevails  in  England  and  in  several  of  these  States,  though 
abrogated  by  statute  in  others,  called  the  Rule  in  Shelley's 
case,  which  has  given  rise  to  questions  of  no  little 
nicety  and  *  refinement  in  respect  to  estates  tail,  which  [*78] 
it  seems  proper  to  allude  to  here,  although  it  is  treated 

more  at  large  in  another  part  of  the  work.  Thus,  if  an  estate 
be  given  to  a  man  for  life,  remainder  to  his  heirs  or  to  the 
heirs  of  his  body,  instead  of  this  being,  as  it  apparently  is, 
and  as,  by  statute,  it  is  regarded  in  several  of  the  States,  an 
estate  for  life,  remainder  to  the  heirs  of  the  tenant  for  life,  it 
is  held  that  the  word  heirs  is  intended  to  denote  the  extent 
and  character  of  the  estate  which  the  first  taker  has,  —  in 
other  words,  that  it  is  a  term  of  limitation  and  not  of  pur- 
chase, and  if  the  heir  takes  at  all  he  takes  by  descent  and  not 
by  purchase.^  It  was  held  that  a  grant  to  a  married  woman 
for  life,  and  at  her  death  to  her  children,  of  her  by  her  hus- 
band begotten,  was  by  the  law  of  New  Jersey  an  estate  tail 
in  the  wife,  nor  would  it  enlarge  it  to  a  fee,  although  the 

1  2  Prest.  Est.  480.  2  2  Prest.  Est.  481,  482. 

8  2  Bl.  Com.  115 ;  Id.  381 ;  2  Prest.  Est.  537  ;  Nightingale  v.  Burreli,  15  Pick. 
104. 

4  Arnold  v.  Brown,  7  R.  I.  196. 

^  The  reader  will  bear  in  mind  that  there  are  only  two  ways  of  acquiring 
real  estate,  one  by  descent,  the  other  by  purchase.  If  a  man  does  not  take  as 
heir,  he  takes  by  jmrchase,  no  matter  how  he  acquires  his  title. 


106  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

covenants  in  the  deed  were  to  her  and  her  heirs  generally.^ 
Of  course,  to  bring  a  case  within  the  rule,  the  limitation  to 
the  heirs  must  be  to  heirs  who  would  take  the  entire  estate 
limited  to  the  first  taker.  For  if,  for  instance,  the  first  estate 
be  limited  to  A  and  B,  and  the  limitation  over  be  to  the  heira 
of  B,  it  turns  the  estate  of  A  and  B  at  once  into  a  joint-life 
estate,  and  the  heirs  of  B  would  take  as  purchasers  or  re- 
mainder-men, for  they  could  not  take  by  descent,  being  heirs 
only  of  one.^ 

44.  Now,  to  apply  this  rule  in  cases  of  limitation  of  an  estate 
to  husband  and  wife  and  their  heirs  in  tail,  the  question 
usually  is,  are  these  heirs  the  heirs  of  the  body  of  the  two  or 
of  one  only  of  them,  because  in  one  case  the  heirs  take,  if  at 
all,  by  descent  within  the  rule  in  Shelley's  case,  —  in  the 
other  as  remainder-men  and  purchasers.  If  the  gift  is  to  the 
husband  and  his  heirs  which  he  shall  beget  on  the  body  of  his 
wife,  it  creates  in  him  an  estate  tail,  while  his  wife  takes  no 
estates  by  the  gift.  If  the  remainder  be  limited  to  the  heirs 
of  the  body  of  the  wife  by  the  husband  to  be  begotten,  she  is 
the  one  who  takes  an  estate  tail,  and  not  the  husband.  But 
if  it  be  to  A  and  his  wife,  and  their  heirs  on  the  body  of  the 

wife  begotten,  they  both  take  estates  tail.  And  in  all 
[*79]  these  cases  the  heirs  take,  if  at  all,  by  descent,^  *  and  not 

by  purchase,  while  the  limitation  to  the  heirs  will  vest 
an  estate  tail  in  that  ancestor  with  reference  to  whom  the 
word  heirs  is  used.  If  the  estate  is  given  to  both  husband 
and  wife,  each  has  a  life  estate,  and  if  the  one  whose  heirs 
are  to  take  dies  first,  his  heirs  take  an  estate  tail  in  remainder 
after  the  death  of  the  other  tenant.* 

45.  On  the  other  hand,  if  the  estate  be  to  husband  for  life, 
or  wife  for  life,  remainder  to  the  heirs  of  the  bodies  of  hus- 

1  Ross  V.  Adams,  4  Dutch.  168.  -  2  Prest.  Est.  441,  442. 

8  The  term  descent,  as  used  in  this  chapter  in  connection  with  the  transmission 
of  an  estate  to  the  issue  in  tail  upon  decease  of  the  ancestor,  tenant  in  tail,  is  in- 
tended to  indicate  that  he  takes  it  as  an  estate  of  inheritance,  and  as  being  of 
the  prescribed  line  of  issue  or  inheritance,  and  not  by  direct  descent  from  his  in- 
termediate ancestor,  since  he  takes  per  formam  doni  from  the  person  who  first 
created  the  estate.  1  Cruisf,  Dig.  83  ;  Partridge  v.  Dorsey,  3  Har.  &  J.  302  ; 
Perry  v.  Kline,  12  Cush.  127. 

*  2  Prest.  Est.  483 ;  Id.  443 ;  Denn  v.  GiUot,  2  T.  R.  431. 


CH.  IV.]  ESTATES   TAIL.  107 

band  and  wife,  the  heirs  take  as  purchasers  and  not  by 
descent ;  and  the  same  would  be  the  case  if  the  limitation 
were  to  husband  or  to  wife  and  the  heirs  of  the  bodies  of 
husband  and  wife.^ 

46.  And  it  may  be  remarked,  in  passing,  that  for  reasons 
hereafter  explained,  such  a  remainder  would  be  a  contingent 
one  so  long  as  the  parent  whose  heirs  were  to  take,  lived,  be- 
cause, as,  nemo  est  haej-es  viventis,  the  person  who  is  to  take 
as  heir  could  not  be  ascertained  till  the  parent's  death.^ 

47.  And  it  may  be  further  remarked  that  at  common  law, 
if  by  a  devise  an  estate  is  so  limited  to  heirs  that  they  will 
take  it,  if  at  all,  by  descent  from  one  to  whom  the  life-estate 
is  given,  and  the  estate  to  the  latter  fails  by  lapsing  in  conse- 
quence of  his  dying  during  the  life  of  the  testator,  the  estate 
to  the  heir  fails  also  ;  whereas,  if  it  had  joeen  to  them  as  pur- 
chasers, the  death  of  the  ancestor  would  not  affect  the  gift  to 
the  heirs  of  the  body.^ 

48.  Among  the  incidents  of  estates  tail,  the  tenant  may 
freely  commit  waste  upon  the  premises  as  if  he  were  tenant 
in  fee-simple,*  though  he  cannot  by  selling  growing  timber, 
authorize  it  to  be  cut  after  his  decease,  it  being  a  right  be- 
longing to  him  only  as  tenant.^ 

49.  Dower  and  curtesy  are  also  incidents  of  this  as 

of  estates  *  in  fee-simple,^  and  although  the  tenant  may  [*80] 
not  charge  the  estate  by  his  agreements  or  with  his 
debts  or  incumbrances,  so  as  to  affect  it  after  his  death,'^  it  is 
now,  by  statute,  made  liable  to  a  limited  extent  for  the  debts 
of  the  tenant,  and  may  be  sold  by  assignees  in  bankruptcy  or 
insolvency  of  the  tenant,  to  the  same  extent  as  he  could  have 
disposed  of  it.^ 

50.  If  there  are  outstanding  charges  or  incumbrances  upon 

1  2  Prest.  Est.  441,  442. 

2  Frogmorton  v.  Wharrey,  2  W.  Bl.  730,  s.  c.  3  Wils.  144. 
8  2  1  'rest.  Est.  442. 

4  Co.  Lit.  224  a  ;  1  Atkinson,  Conv.  195;  Jervis  v.  Bruton,  2  Venn.  251. 

6  Liford's  case,  11  Eep.  50.  6  Co.  Lit.  224  a. 

"^  Wharton  v.  Wharton,  2  Vern.  3,  and  note;  1  Atkinson,  Conv.  197 ;  Herbert 
y.  Fream,  2  Eq.  Cas.  Abr.  28,  §  84;  Partridge  v.  Dorsey,  3  Har.  &  J.  302;  1 
Cruise,  Dig.  84. 

8  Tud.  Cas.  614;  1  Atkinson,  Conv.  198. 


108  LAW    OF   REAL   PROPERTY.  [BOOK   I. 

the  estate,  the  tenant  is  not  bound  to  pay  them  off;  and  it  has 
been  held  that  he  was  not  compelhxble  by  the  reversioner  or 
remainder-man  to  keep  down  the  interest,  except  in  special 
cases,  although  it  is  incumbent  upon  a  tenant  for  life  to  do  so. 
And  the  reason  appears  to  be  that  equity  considers  the  estate 
as  his  own,  and  that  he  may  keep  down  the  incumbrance  or 
lose  the  estate,  as  he  pleases.  And  if  he  does  pay  it  off,  he 
is  considered  as  doing  it  on  his  own  account,  and  cannot  by 
so  doing  make  himself  creditor  of  the  estate  for  the  amount, 
unless  he  takes  an  assignment  to  himself  of  the  incumbrance 
which  he  pays.^ 

51.  As  a  proposition  almost  universal,  where  a  greater  and 
less  estate  come  together  in  one  person  by  the  same  right, 
without  any  intervening  estate,  they  will  unite  in  one,  the 
lesser  being  merged  gr  swallowed  up  in  the  greater.  But  this 
does  not  apply  in  case  of  estates  tail.  If  the  tenant  acquire 
the  reversion  or  remainder  in  fee-simple,  it  does  not  merge 
the  limited  estate  which  he  has  as  tenant  in  tail.  And  this 
grows  out  of  the  statute  De  Donis,  which  meant  to  restrain 
him  as  tenant  from  passing  this  estate  out  of  him,  which  he 
might  easily  have  done  if  by  his  acquiring  the  reversionary 
interest  it  had  merged  in  the  reversion.^ 

52.  So  long  as  an  estate  retains  the  character  of  an 
[*81]  estate  *  tail,  it  will  descend,  in  due  course  of  law,  to 
the  issue  of  the  donee,  who  answer  the  requisite  de- 
scription, however  remote  in  degree,  from  the  person  to  whom 
the  gift  may  have  been  originally  made,  each  of  whom  in 
succession  will  be  tenants  in  tail,  with  all  the  powers  and 
rights  which  the  common  ancestor,  the  donee,  had  in  respect 
to  the  estate,  so  long  as  there  may  by  possibility  be  issue  to 
answer  to  this  description.^ 

53.  In  England,  the  course  of  descent  of  estates  in  fee- 
simple  and  fee  tail  general,  is  the  same  by  the  common  law,; 

1  1  Cruise,  Dig.  75  ;  Tud.  Cas.  638  ;  Chaplin  v.  Chaplin,  3  P.  Wms.  229 ;  2 
Law  Mag.  265,  266  ;  Id.  270.  See,  as  to  equity  appointing  receivers  to  collect 
rents  and  keep  down  the  interest  on  incumbrances  upon  estates  tail.  Story's  Eq. 
§  835;  Jeremy,  Eq.  Juris.  251,  252 ;  Bertie  v.  Abingdon,  3  Mer.  560. 

'^  Wiscot's  case,  2  Rep.  61  ;  1  Atkinson,  Conv.  194  ;  Roe  v.  Baldwere,  5  T.  R. 
110 ;  Poole  V.  Morris,  29  Ga.  374. 

3  2  Prest.  Est.  394 ;  Wms.  Real  Prop.  53 ;  Corbin  v.  Healy,  20  Pick.  514, 


CH.  IV.]  ESTATES    TAIL.  109 

as,  for  example,  to  the  oldest  son,  if  the  ancestor  have  sons.^ 
And  the  same  rule  applies  in  this  country,  where  the  subject 
is  not  regulated  by  statute,  the  oldest  son  of  the  donee  and 
his  oldest  son,  and  so  on,  taking  in  succession.^ 

54.  And  yet  this  theoretic  perpetuity  of  succession  has 
practically  little  effect.  By  the  ease  with  which  estates  tail- 
may  be  barred  and  converted  into  fees-simple,  strict  and  con- 
tinuous entails  have  long  since  been  virtually  abolished  in 
England  ;  and  the  remark  applies  with  greater  force  in  this 
country,  where,  as  will  be  seen,  not  only  may  they  be  barred 
where  they  exist,  with  equal  facility,  but  in  many  States 
such  estates  have  been  wholly  abolished.^ 

55.  The  mode  of  effectually  barring  these  estates  or  con- 
verting them  into  estates  in  fee-simple,  was  formerly  by 
common  recoveries,  which  has  already  been  spoken  of.  Since 
these  have  been  abolished  in  England,  it  may  be  done  by 
deed  executed  by  the  tenant  in  tail  and  enrolled  in  chancery 
within  six  months  after  its  execution.  The  form  and  effect 
of  this  is  regulated  by  the  statute  3  and  4  Wm.  IV.  c.  74, 
which  makes  provision,  in  certain  cases,  for  guarding  against 
injustice  being  done  to  parties  in  interest,  b}^  requiring  the 
assent  of  a  person  called  a  jirotector  to  such  sale,  in  order  to 
its  being  an  effectual  bar.  But  its  great  length  ren- 
ders it  necessary  to  refer  the  reader  to  the  *  statute  [*82] 
itself  for  its  various  provisions.*  The  mode  of  barring 
estates  tail  in  this  country  will  be  noticed  by  itself. 

56.  Although  this  may  not  be  the  place  to  treat  of  it  at 
large,  it  may  be  proper,  in  this  connection,  to  say  that  it  is 
very  common  in  England  to  create  a  temporary  entailment 
of  lands  in  the  donor's  family,  by  means  of  marriage  settle- 
ments, which  may  extend  through  one  generation,  and  until 
the  person  in  the  second  who  is  to  succeed  to  the  estate, 
usually  an  oldest  son,  is  of  age,  to  bar  it  by  his  deed,  as  he 
may  do  by  consent  of  the  tenant  actually  in  possession.  This 
he  generally  does  by  making  a  new  settlement,  usually  in 

1  Wms.  Real  Prop.  63 ;  Id.  45.  2  Corbin  ;•.  Healy,  20  Pick.  514. 

3  Wms.  Real  Prop.  64. 

*  Wms.  Real  Prop.  42,  43 ;  Id.  47,  48 ;  Tud.  Cas.  614 ;  1  Atkinson,  Conr. 
240-250 ;  2  Sugd.  Vend.  282-290. 


110  LAW    OF   REAL    PROPERTY.  [bOOK    I. 

favor  of  an  oldest  son ;  and  so  primogeniture,  as  it  obtains 
among  the  gentry  there,  is  a  matter  of  custom  rather  than  of 
legal  right,  since  these  conveyances  might  always  be  made  to 
strangers.  To  explain  this,  one  form  of  making  these  settle- 
ments is  to  convey  lands  to  the  use  of  the  husband  for  life, 
with  provisions  for  the  wife  and  daughters  therein,  and  then 
to  the  oldest  son  who  might  be  born  of  the  marriage,  in  tail, 
and,  in  case  of  his  dying  without  issue,  then  to  the  second 
son,  and  so  on  to  the  third ;  and  to  daughters  in  default  of 
sons.  And  in  this  way  the  estate  is  locked  up  from  alienation 
till  some  tenant  in  tail  is  twenty-one  years  of  age,  and  sees  fit 
to  bar  the  entail  in  the  manner  above  stated.^ 

57.  Still  the  policy  of  the  law  is  against  clogging  the  free 
alienation  of  estates,  and,  as  will  be  shown  hereafter,  it  has 
become  an  imperative,  unyielding  rule  of  law,  first,  that  no 
estate  can  be  given  to  the  unborn  child  of  an  unborn  child  ; 
and  second,  that  lands  cannot  be  limited  in  any  mode  so  as 
to  be  locked  up  from  alienation  beyond  the  period  of  a  life 
or  lives  in  being  and  twenty-one  years  after,  allowing  the 
period  of  gestation  in  addition,  of  a  child  en  ventre  sa  mere, 
who  is  to  take  under  such  a  limitation.     This  is  borrowed 

from  the  rule  above  stated  as  to  settlements  where 
[*83]  the  first  tenant  in  tail,  after  an  *  estate  for  life,  as 

soon  as  he  arrives  at  twenty-one  years,  could  convey 
the  entailed  estate.^ 

58.  From  the  very  definition  of  estates  tail  special,  as  above 
given,  it  must  be  obvious  that  cases  may  occur  where  it  shall 
have  become  impossible  for  any  one  to  take  as  issue  in  tail 
while  the  tenant  is  3"^t  alive.  It  may  be  limited  to  the  heirs 
of  his  body  of  his  wife  Mary  begotten,  and  she  may  have  died 
without  issue.  As  no  other  heirs  can  take,  he  becomes  what 
is  known  as  "  tenant  in  tail,  after  possibility  of  issue  extinct." 
It  can  apply  only  in  cases  of  special  tail ;  for  if  heirs  of  his 
body  general  might  take,  the  law  would  not  deem  the  possi- 
bility of  issue  extinct  so  long  as  he  lives.^ 

1  Wms.  Real  Prop.  45.     See  vol.  2,  Appendix,  p.  *702. 

•-'  Wms.  Real  Prop.  46 ;  Cadell  v.  Palmer,  1  Clark  &  Fin.  372.  Also,  Tud. 
Cas,  331 ;  Id.  358-361. 

8  3  Prest.  Est.  304;  Wms.  Real  Prop.  49. 


CH.  IV.]  ESTATES   TAIL.  Ill 

59.  Sucb  estate  is  one  of  a  peculiar  character.  It  has 
ceased  to  be  one  of  inheritance,  and  yet  retains  many  of  the 
qualities  of  an  inheritable  estate.  The  tenant  is  not  punish- 
able for  waste,  like  a  tenant  for  life,  and  yet  may  be  restrained 
from  malicious  waste  by  chancery,  although  a  proper  tenant 
in  tail  could  not  be.  He  cannot  any  longer  bar  the  entail, 
and  if  the  remainder  or  reversion  in  fee  were  to  descend  upon 
him,  it  would  merge  his  estate  as  tenant,  as  it  would  if  he 
were  a  mere  tenant  for  life.^ 

60.  Estates  tail  were  introduced  into  the  English  colonies 
with  other  elements  of  the  common  law,  and  in  some  of  the 
colonies  the  mode  of  barring  them  by  common  recovery  ob- 
tained before  the  Revolution.^  Common  recoveries,  as  a 
mode  of  barring  estates  tail  in  Massachusetts,  though  formerly 
in  use,  were  abolished  in  1792.^  Recoveries  were  also  once 
in  use  in  New  Hampshire  in  barring  estates  tail.  Bell,  J.,  in 
a. recent  case,  held  that  the  statute  of  1789  repealed  the  stat- 
ute Be  Bonis  and  abolished  estates  tail.  And  this  was  subse- 
quently reaffirmed  by  the  same  court.*  * 

61.  But  now  these  estates  are  either  changed  into 

fees  *  simple  or  reversionary  estates  in  fee-simple,  and  [*84] 
do  not  exist  at  all  as  estates  tail,  or  may  be  converted 

*  Note.  —  No  allusion  seems  to  be  made  directly  to  estates  tail,  or  fines  and 
recoveries  in  the  stat.  1789.  In  1791,  an  act  was  passed  limiting  the  time  within 
which  "  writs  of  formedon  in  descender,  remainder,  and  reverter,"  may  be  brought. 
An  action  of  formedon  in  descender  was  tried  in  the  same  court,  in  1857,  without 
objection.  And,  in  1837,  an  act  was  passed  authorizing  any  person  seised  of 
lands  in  fee-tail,  and  having  power  to  convey  by  fine  and  recovery,  to  convey 
the  lands  by  deed,  and  thereby  bar  all  remainders,  reversions,  &c.  2  Laws,  316  ; 
Dennett  v.  Dennett,  40  N.  H.  Rep.  508 ;  Frost  v.  Cloutman,  7  N.  H.  9. 


1  2  Wms.  Real  Prop.  49 ;  1  Cruise,  Dig.  137  ;  Co.  Lit.  27  b,  28  a  ;  Burton,  Real 
Prop.  §  747  ;  2  Sharsw.  Bl.  Com.  125,  n. 

2  Walker,  Am.  Law,  299  ;  4  Kent.  Com.  14  ;  Lyle  v.  Richards,  9  S.  &  R.  330 ; 
Jackson  v.  Van  Zandt,  12  Johns.  169.  1  Story,  Cons.  165,  says  that  Virginia 
adopted  entails,  but  did  not  fines  and  recoveries.  Hawley  v.  Northampton,  8 
Mass.  34  ;  Partridge  v.  Dorsey,  3  Har.  &  J.  302;  Den  v.  Schenck,  5  Hals.  39  ; 
Sulhvan,  Tit.  77;  4  Dane,  Abr.  624;  2  Sharsw.  Bl.  Com.  119,  n. ;  Baker  v.  Mat- 
tocks, Quincy  R.  73.  Recoveries  were  in  use  in  New  Jersey  till  abolished  by 
statute  in  1799.     Croxall  v.  Sherard,  6  Wallace,  U.  S.  283. 

3  4  Dane,  Abr.  82  ;  Perry  v.  Kline,  12  Cush.  126. 

4  Jewell  V.  Warner,  35  N.  H.  176  ;  Dennett  v.  Dennett,  40  N.  H.  500. 


112  LAW  OF  REAL  PROPERTY.  [BOOK  L 

into  estates  in  fee-simple  by  familiar  forms  of  conveyance,  in 
the  several  States,  by  force  of  their  resjpective  statutes.^ 

1  Nightingale  v.  Burrell,  15  Pick.  116.  Alabama,  fees-tail  are  converted  into 
fees-simple  in  the  hands  of  the  one  to  whom  the  conditional  estate  is  given.  Code, 
1867,  §  1570. — Arkai^sas,  the  tenant  in  tail  is  made  tenant  for  life,  vrith  remainder 
in  fee-simple  to  the  person  to  whom  at  common  law  the  estate  would  first  de- 
scend. Rev.  Stat.  1838,  c.  31,  §  6. —  California,  the  constitution  prohibits  per- 
petuities. Art.  11,  §  16. —  Connecticut,  tiie  issue  of  tlie  first  donee  in  tail  takes 
an  absolute  fee-simple.  Gen.  Stat.  1875,  p.  352.  —  Ddaware,  estates  tail  may  Le 
barred  by  fine  and  common  recovery,  or  by  deed.  So  tenants  in  tail  may  alien 
their  lands  in  fee-simple  by  deed  in  the  same  way  as  if  the  estate  were  owned  in 
fee-simple,  if  the  same  is  acknowledged  and  duly  proved.  Laws,  ed.  1874,  p. 
507.  —  /-Vonc/a,  entails  are  proiiibited.  Thompson,  Dig.  2d  Divis.  Tit.  2,  c.  1, 
§  4.  —  Georgia,  estates  tail  are  abolished.  A  grant  to  one  and  the  heirs  of  his 
body  creates  an  absolute  fee.  Code,  1873,  p.  391.  —  Illinois,  an  estate  tail  is  an 
estate  for  life  in  the  tenant  in  tail,  with  a  remainder  in  fee-simple  to  the  one  to 
whom,  on  the  death  of  the  first  grantee,  it  would  pass  according  to  the  course  of 
the  common  law.  Rev.  St.  1874,  p.  273.  —  Indiana,  estates  tail  are  abolished, 
and  if  no  valid  remainder  is  limited  upon  what  in  form  is  an  estate  tail,  the  ten- 
ant has  a  fee-simple.  Stat,  vol.1,  p.  266.  —  Iowa,  all  limitations  void  which 
suspend  the  absolute  power  of  alienation  longer  than  lives  in  being  and  twenty- 
one  years.  Code,  1873,  p.  355.  —  Kansas,  "  heirs  "  is  not  required  as  a  word  of 
limitation,  and  lands  descend  to  children  in  equal  shares.  Gen.  St.  1868,  pp. 
185,  394.  —  Kentnrky,  estates  which  would  otherwise  be  deemed  estates  tail  are 
held  to  be  fees-simple.  Gen.  St.  1873,  p.  585.  —  Maine,  tenant  in  tail  may  con- 
vey in  fee-simple.  Rev.  Stat.  1871,  p.  559. — Maryland,  sume  as  Maine,  and 
estates  in  fee  tail  general  will  descend  to  heirs  like  estates  in  fee-simple.  Chelton 
V.  Henderson,  9  Gill,  438;  Posey  v.  Budd,  21  Md.  477,  487.  Code,  1860,  pp. 
136,  330.  —  Michigan,  estates  tail  are  abolished,  and  such  as  would  be  at  common 
law  are  declared  fees-simple.  Comp.  L.  vol.  2,  §  2587.  —  Minnesota,  persons  hold- 
ing what  would  be  an  estate  tail  are  to  be  "adjudged  seised  thereof  as  an  allo- 
dium." Rev.  St.  1866.  —  Mississippi,  estates  tail  are  prohibited  and  declared  to 
be  estates  in  fee-simple  except  that  lands  may  be  limited  to  a  succession  of  donees 
then  living,  not  exceeding  two,  and  to  the  heirs  of  the  body  of  the  remainder- 
man, and  in  default  thereof  to  the  heirs  of  the  donor  in  fee-simple.  Code,  1871, 
§  2286.  The  statute  De  Donis  was  never  in  force  here.  Jordan  v.  Roach,  32  Miss. 
482.  —  Missouri,  tenant  in  tail  takes  an  estate  for  life,  remainder  to  his  children 
in  fee  as  tenants  in  common.  Gen.  Stat.  1866,  p.  442.  —  Massachusetts,  Gen. 
Stat.  c.  89,  §  4,  tenant  in  tail  may  convey  an  estate  in  fee-simple  by  deeds  in 
common  form.  But  a  tenant  in  tail  in  remainder  cannot,  by  deed,  convey  any 
estate,  either  by  way  of  grantor  estoppel.  Whittaker  v.  Whittaker,  99  Mass. 
366 ;  Holland  v.  Cruft,  3  Gray,  183  ;  Allen  v.  Trustees,  &c..  102  Mass.  265.  Nor 
can  a  married  woman  bar  an  entail  by  deed  in  which  her  iiusband  does  not  join. 
Whittaker  v.  Whittaker,  sup.  367.  But  the  estate  of  a  tenant  in  tail  may  be 
taken  on  execution,  or  may  be  sold  by  license  of  court  after  the  death  of  a  ten- 
ant in  tail  in  possession,  but  not  of  a  tenant  in  tail  in  remainder.  Holland  v. 
Cruft,  sup. ;  Allen  v.  Trustees,  sup.  Where  land  is  held  by  one  as  tenant  for  life, 
with  a  vested  remainder  in  tail  to  another,  the  tenant  for  life  and  remainder-man 
may  convey  the  same  in  fee-simple  by  their  deed,  which  deed  will  bar  the  estate 


CH.  IV.]  ESTATES    TAIL.  113 

The  reader  will  find  what  is  *  believed  to  be  the  sub-  [*85] 
stance  of  the  existing  laws  of  the  several  States  on  the 
subject  in  the  accomj)anying  note.  The  doctrine  of  entail- 
ment of  estates  in  families  was  never  consonant  to  the  genius 
of  the  people  of  this  country,  and  even  in  the  few  States 
where  the  form  of  estates  tail  remains,  the  application  of  it 
has  been  very  rare.  And  the  facility  with  which  even  these 
may  be  barred  by  aliening  them,  renders  the  possibility  of 
creating  them  of  little  practical  importance,  though  it  does 
not  do  away  with  the  necessity  of  understanding  the  rules  by 
which  such  estates  are  governed. 

tail  and  all  remainders  and  reversions  expectant  upon  it.  Gen.  Stat.  c.  89,  §  6. 
Under  the  Mass.  statute  of  1791,  a  deed  made  bona  fide,  for  a  valuable  consid- 
eration, executed  in  the  presence  of  two  witnesses,  barred  entails.  Williams  v. 
Hichborne,  4  Mass.  190;  Cuffee  v.  Milk,  10  Met.  366;  Willey  v.  Haley,  60 
Maine,  176.  — Nebraska,  "  heirs  "  not  necessary  to  create  a  limitation  of  an  estate 
in  fee-simple.  Gen.  Stat.  1873,  p.  383. — New  Jersey,  the  first  taker  has  an  estate 
for  life,  and  fee-simple  vests  in  the  heirs.  4  Kent,  Com.  15,  n.  ;  Nixon,  Dig.  p. 
214. — New  York,  estates  tail  abolished,  and  if  no  valid  remainder  is  limited 
thereon,  the  tenant  in  tail  takes  a  fee  absolute.  Stat,  at  Large,  vol.  l,p.  670.  — 
North  Carolina,  tenant  in  fee-tail  is  seised  in  fee-simple,  and,  for  a  valuable  con- 
sideralaon,  may  convey  it  in  fee.  Gen.  Stat.  1873,  p.  383.  —  Ohio,  the  issue  of 
the  first  donee  in  tail  takes  a  fee-simple  absolute.  1  Rev.  Stat.  S.  &  C.  p.  550.  — 
Pennsijlrania,  fines  and  recoveries  have  the  same  effect  to  bar  estates  tail  as  in 
England.  Tenants  in  tail  may  convey  lands  of  which  they  are  seised  in  the 
same  manner  as  if  seised  in  fee,  and  thereby  bar  the  entailment,  as  by  a  recov- 
ery. 1  Bright,  Purd.  Dig.  1872,  p.  619  ;  Price  v.  Taylor,  28  Penn.  St.  107  ; 
Haldeman  v.  Haldeman,  40  Penn.  St.  36.  —  Rhode  Island,  tenant  in  tail  may  bar 
it  by  deed  or  devise,  by  limiting  a  fee-simple  to  his  grantee  or  devisee,  the  deed 
to  be  acknowledged  before  the  Supreme  Court  or  Court  of  Common  Pleas.  Gen. 
Stat.  1872 ;  Cooper  v.  Cooper,  6  R.  I.  264.  —  South  Carolina,  statute  De  Donis 
never  in  force  there  ;  estates  in  fee-simple  conditional  remain  as  at  common  law. 
Stat.  vol.  3,  p.  341.  —  Tennessee,  all  tenants  in  tail  are  seised  in  fee-simple. — 
Texas,  by  constitution,  art.  1,  §  18,  primogeniture  nor  entailment  can  never  bo 
in  force.  —  Vermont,  the  donee  in  tail  takes  an  estate  for  life,  remainder  in  fee- 
simple  absolute  to  him  to  whom  the  estate  would  pass  upon  his  death.  Gen. 
St.  1862,  p.  446.  —  Wisconsin,  all  estates  tail  changed  into  fee-simple  in  the  ten- 
ant in  tail.  Rev.  Stat.  1858,  p.  524.  —  Virginia,  estates  tail  were  abolished  as  early 
as  1776.  4  Kent,  Com.  5,  n.  And  now  estates  tail  are  converted  into  estates  in 
fee-simple,  whichever  form  is  adopted.  Code,  1860,  p.  559.  And  the  same  rule 
prevails  in  West  Virginia.  Code,  1868,  p.  460.  —  Dacolah,  estates  tail  abolished. 
Civ.  Code,  1866. 

VOL.    I.  8 


114  LAW   OP   REAL  PKOPERTY.  [BOOK   L 


CHAPTER  V. 

ESTATES  FOR  LIFE. 

Sect.  1.  Their  Nature  and  Incidents. 

Sect.  2.  Of  Estovers. 

Sect.  3.  Of  Emblements. 

Sect.  4.  Of  Waste. 

SECTION  I. 

THEIR   NATURE  AND   ESTCIDENTS. 

1,  2.  Estates  for  life  —  what,  and  how  created. 

8,  4.  Estate  per  autre  vie  —  less  than  for  tenant's  own  life. 

5-7.  What  constitutes  an  estate  for  life,  and  what  not. 

8.  How  far  referable  to  tenant's  natural  life. 

9.  Such  estates  are  freeholds. 

10,  11.  When  and  how  far  affected  by  merger. 

12.  Estate  for  tenant's  own  life  changed  to  one  per  autre  vie. 

13-18.  How  great  an  estate  tenant  for  life  may  convey.     Effect  of  ex- 
ceeding this. 

19  Effect  of  tenant's  disclaiming  landlord's  title. 

20-22.  Doctrine  of  occupancy  in  case  of  death  of  tenant  per  autre  vie. 

23.  Of  grant  and  devise  by  tenant  per  autre  i-ie. 

24.  Duties  incident  to  estates  for  life.     Defending  the  title. 
24  a.  Tenant  cannot  claim  for  improvements. 

25-27.  As  to  paying  incumbrances  ;  apportionment,  &c. 

28,  29.  As  to  paying  taxes. 

80-32.  When  rent  is  apportionable,  and  to  whom  payable. 

83.  As  to  possession  of  title-deeds. 

1.  The  next  estate  in  importance,  as  computed  in  the  scale 
of  gradation,  is  an  estate  for  life,  because  ordinarily  measured, 
as  to  its  duration,  by  the  term  of  a  human  life,  and  regarded 
as  a  freehold.  This  is  rather  a  class  of  estates,  and  embraces 
all  freeholds  which  are  not  of  inheritance,  including  estates 
held  by  the  tenant  for  the  term  of  his  own  life,  or  for  the  life 
or  lives  of  one  or  more  other  persons,  or  for  an  indefinite 
period  which  may  endure  for  the  life  or  lives  of  persons  in 


CH.  V.  §  1.]  ESTATES    FOR   LIFE.  115 

being,  and  not  beyond  the  period  of  a  life.^  Nor  does  it 
change  the  character  of  a  life  estate  so  long  as  it  remains 
such,  that  it  may,  upon  the  happening  of  a  contingency,  be- 
come enlarged  into  a  fee.  Thus,  where  a  devise  was  to  A, 
but  if  she  never  had  children,  or  a  child  living  at  her  decease, 
the  same  was  to  go  to  B  in  fee,  it  was  held  to  be  a  life  estate 
only  in  A  to  become  a  fee  upon  the  happening  of  this  condi- 
tion. And  A  having  died  without  children,  the  devise  over 
to  B  took  effect  in  fee.^ 

2.  These  may  be  created  by  the  act  of  some  party,  as  by  a 
deed  or  devise,  or  by  act  of  the  law,  as  in  case  of  dower  and 
curtesy,  as  being  incident  to  relations  like  that  of  marriage, 
which  are  created  by  law. 

3.  Where  the  estate  is  in  one  during  the  life  of  another,  it 
is  technically  called  an  estate  per  autre  vie,  and  he  whose  life 
is  the  measure  of  its  duration  is  styled  cestui  que  vie.^ 

4.  An  estate  for  the  tenant's  own  life  is,  in  the  estimation 
of  the  law,  a  better  one  and  of  a  higher  nature  to  him  than 
one  for  the  life  or  lives  of  another  or  others.  An4,  as  in  con- 
struing grants  where  the  language  is  equivocal,  that  construc- 
tion is  given  which  is  most  favorable  to  the  grantee,^  where  a 
grant  is  made  to  one  with  no  other  words  of  limitation,  he 
will  be  entitled  to  an  estate  during  his  own  life,  if  the  estate 
of  the  grantor  will  allow  him  to  convey  such  an  estate.'^ 

5.  Among  the  instances  of  what  will  be  deemed  a  grant  of 
an  estate  for  life,  are  those  above  put  of  a  grant  to  one  ex- 
pressly for  life,  or  to  him  without  words  of  limitation,  or  to 

1  Hewlins  v.  Shippam,  5  B.  &  Cress.  221 ;  2  Bl.  Com.  121. 

'■^  Hatfield  v.  Sneden,  42  Barb.  622,  where  the  distinction  between  tliis  case 
and  that  of  Buckworth  v.  Thirkell  {ante,  p.  *66)  is  considered.  Overruled,  54  N. 
Y.  285. 

8  2  Bl.  Com.  120 ;  Co.  Lit.  41  b.  For  what  is  evidence  of  the  death  of  a  cestui 
que  vie,  see  Clark  v.  Owens,  18  N.  Y.  434  It  is  stated  in  Garland  v.  Crow,  2  Bai- 
ley, 24,  that  "  in  contemplation  of  law  an  estate  for  life  is  equal  to  seven  j^ears 
purchase  of  the  fee.  To  estimate  the  present  value  of  an  estate  for  life,  interest 
must  be  computed  on  the  value  of  the  whole  property  for  seven  years,  &\\i\  per- 
haps interest  on  the  several  sums  of  the  annual  interest,  from  the  present  time  to 
the  periods  at  which  they  would  respectively  fall  due,  ought  to  be  abated."  And 
with  the  rate  of  interest  at  seven  per  cent.,  the  present  value  of  an  estate  for  life 
is  a  fraction  more  tlian  thirty -five  per  cent,  of  the  value  of  the  absolute  estate. 

4  Broom,  Max.  457 ;  2  Bl.  Com.  121. 

6  Co.  Lit.  42  a ;  Broom,  Max.  458 ;  2  Bl.  Com.  121. 


116  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

him  during  the  life  of  another,  or  to  a  woman  so  long  as  she 
shall  remain  a  widow,  or  to  a  man  and  woman  during  cover- 
ture, or  so  long  as  a  man  shall  live  in  a  certain  house, 
[*89]  or  shall  pay  a  *  certain  sum,  or  until  <£100  be  paid  out 
of  the  income  of  the  estate,  even  though  the  income 
of  the  estate  be  XIO  by  the  year.;  i  or  so  long  as  the  grantee 
shall  maintain  salt-works  on  the  land.^  So  the  reservation 
by  a  grantor  of  the  use  and  control  of  the  granted  premises 
during  his  life,  creates  in  him  a  life  estate  with  all  its  inci- 
dents.^ The  importance  of  the  distinction  between  simple 
freeholds  and  freeholds  of  inheritance,  and  estates  less  than 
freehold,  is  obvious,  when  the  incidents  are  considered  which 
belong  to  the  one  or  the  other  of  those. 

6.  Among  the  exceptions  to  the  above  is  a  devise  of  lands 
to  executors  until  testator's  debts  are  paid,  which  will  pass  a 
chattel  and  not  a  freehold  interest.  So  if  the  grantor  himself 
have  only  an  estate  for  life,  or  is  tenant  in  tail,  the  grant,  if 
indefinite,  shall  be  held  to  be  for  the  life  only  of  the  grantor. 
And  in  the  construction  of  wills,  as  well  as  of  deeds  by  statute 
in  several  of  the  States,  as  heretofore  stated,*  it  is  often  held 
that  the  devisor  or  grantor  passes  whatever  estate  he  has, 
whether  a  fee-simple  or  less,  as  the  case  may  be,  though  he 
do  not  make  use  of  words  of  limitation  and  inheritance  in  his 
will  or  deed.^  It  matters  not  how  contingent  or  uncertain 
the  duration  of  the  estate  may  be,  or  how  probable  is  its  de- 
termination in  a  limited  number  of  years,  if  it  is  capable  of 
enduring  for  the  term  of  a  life,  it  is  within  the  category  of 
estates  for  life.^ 

7.  In  many  cases  estates  for  life  are  held  to  be  raised  by 
implication,  especially  under  devises,  as  where  A  devises  his 
land  to  his  heir  after  the  death  of  B.     Here,  as  no  one  but 

1  Co.  Lit.  42  a ;  Tud.  Cas.  31  ;  Jackson  v.  Myers,  3  Johns.  388 ;  Roseboom  v. 
Van  Vechten,  5  Denio,  414.  And  to  these  may  be  added  tlie  rights  of  "home- 
stead" in  some  of  the  States,  which  will  be  liereafter  treated.     See  ch.  8,  §  2. 

^  Hurd  V.  Gushing,  7  Pick.  169. 

3  Webster  v.  Webster,  33  N.  H.  22 ;  Richardson  v.  York,  14  Maine,  216. 

4  Ante,  p.  *29. 

8  Co.  Lit.  42  a.  See  Stat,  of  Wills,  1  Vict.  c.  66,  §  28;  2  Jarman  on  WilU, 
181,  Perkins's  notes. 

6  2  Flint,  Real  Prop.  232 ;  Co.  Lit.  42  a. 


CH.  V.  §  1,]  ESTATES    FOR    LIFE.  117 

the  heir  could  take  except  by  the  will,  and  by  that  he  is 
postponed  till  the  death  of  B,  it  is  held  that  B  is,  b}^  con- 
struction, made  tenant  for  life.  But  if  it  had  been  to  a 
stranger,  after  the  death  of  B,  no  such  inference  would  be 
raised,  for  the  estate  in  the  mean  time  would  go  to  the  heir.^ 

8.  It  was  customary  in  England,  while  monasteries  were  in 
existence  there,  to  limit  estates  for  life  to  persons  during  their 
natural  lives,  lest  their  civil  deaths  might  terminate  the  estate. 
But  there  is  no  occasion  in  this  country  to  make  use  of  this 
expression,  as  there  is  no  civil  death  nor  practical  for- 
feiture of  *  lands,  it  is  believed,  for  felony,  and  to  a  [*90] 
very  limited  extent  for  treason.^ 

9.  It  has  been  more  than  once  stated  that  estates  for  life 
were  considered  under  the  feudal  law  freeholds,  were  created 
by  livery  of  seisin,  and  for  them  the  tenants  owed  fealty  to 
the.  lord,  but  not  homage,  as  that  was  due  only  from  the  one 
who  had  the  inheritance.  And  it  may  be  added  that,  accord- 
ing to  strict  feudal  notions,  a  tenancy  per  autre  vie  was  not 
deemed  of  sufficient  importance  to  be  considered  a  freehold 
interest.^ 

10.  In  measuring  the  duration  of  a  life  estate  where  the 
life  of  more  than  one  person  is  referred  to,  the  question  is 
sometimes  affected  by  the  doctrine  of  merger,  which  applies 
where  a  greater  and  less  estate  unite  in  the  same  person, — 
the  less  being  extinguished.*  Thus  an  estate  to  A  during 
life  and  the  lives  of  B  and  C,  is  considered  cumulative,  and 
will  continue  during  the  lives  of  all  three. ^  But  if  it  had 
been  to  A  during  the  life  of  B,  remainder  to  A,  the  estate  to 
himself  would  be  considered  a  greater  estate  than  that  during 
the  life  of  the  cestui  que  vie^  and  would  therefore  merge  this 
so  that  A  would  simply  have  an  estate  for  his  own  life  in 
himself.^     And  in  conformity  with  the  doctrine  of  merger,  if 

1  1  Jarman  on  Wills,  466;  Id.  476. 

2  Wins.  Real  Prop.,  Rawle's  note,  p.  103;  5  Dane,  Abr.  11.  This  is  not  in- 
tended to  apply  to  cases  of  alleged  forfeiture  by  the  tenant  for  life,  conveying 
the  lands  in  fee,  and  the  like. 

3  2  Bl.  Com.  120 ;  1  Spence,  Eq.  Jur.  144  ;  Wms.  Real  Prop.  17 ;  Id.  22.  Mr. 
Williams  is  of  tlie  opinion  that  feuds  were  not  originally,  as  some  have  supposed, 
held  at  the  will  of  the  lord. 

*  2  Bl.  Com.  177.  6  m.  Lit.  41  b  ;  3  Brest.  Conv.  225. 

6  3  Brest.  Conv.  225 ;  Smith,  Real  &  Bers.  Brop.  939. 


118  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

the  owner  of  a  reversion  immediately  expectant  upon  an  estate 
for  life,  grant  his  reversion  to  the  tenant  for  life,  it  will  merge 
the  estate  for  life,  even  though  the  grant  be  a  conditional 
one.^  And  this,  whether  the  reversion  be  in  fee,  in  tail,  or 
for  life  only .2 

11.  But  if  the  tenant  surrender  to  the  reversioner,  and  this 
be  on  condition,  and   then  an  entry  be  made  for  condition 
broken,  the  tenant  for  life  is  in  again  of  his  original  estate, 
and  the  estate  for  life  survives.     The  effect  of  such  an  opera- 
tion is  not  a  complete  merger,  since  a  surrender  is  but 

[*01]  "  the  consent  of  a  *  particular  tenant  that  he  in  remain- 
■  der  or  reversion  shall  presently  have  possession."  ^  If 
the  tenant  for  life  lease  the  premises  to  the  reversioner  for 
his,  the  reversioner's  life,  his  estate  does  not  merge  in  the  re- 
version, because  he  parts  with  a  less  estate  than  he  is  sup- 
posed to  have  ;  and  if  he  outlives  the  reversioner,  he  will 
take  the  estate  again  for  the  balance  of  his  own  life.* 

12.  Though  there  are  some  peculiarities  in  the  nature  of 
estates  per  autre  vie,  which  will  be  hereafter  explained,  it 
may  be  here  remarked,  that  if  a  tenant  for  his  own  life,  as, 
for  instance,  a  dowress,  conveys  that  estate  to  another,  the 
latter  becomes  thereby  a  tenant  for  life  per  autre  vieJ' 

1-3.  A  tenant  for  life  is  regarded  as  so  far  the  owner  of  an 
independent  estate,  that  unless  restrained  by  the  terms  of  his 
grant,  he  may  convey  his  entire  interest,  or  carve  any  lesser 
estate  out  of  the  same  in  favor  of  another.  In  other  words, 
he  may  assign  his  entire  estate  or  underlet  the  whole  or  any 
parr  of  the  same  for  a  longer  or  shorter  period,  not  exceeding 
that  of  his  own.*'  He  cannot,  however,  convey  his  estate  ex- 
cept by  deed." 

14.  The  conveyance  by  a  tenant  for  life  of  a  greater  estate 
than  he  has  in  the  premises,  a  fee  for  instance,  has  been 
allowed  to  have  a  different  effect  at  different  times  in  England 
and  in  this  country.     While  convej^ances  by  feoffment  were 

1  Burton,  Real  Prop.  §  764;  Co.  Lit.  218  b.  2  Sinitli,  R.  Prop.  939. 

3  Burton,  Real  Prop.  §  7G4 ;  Smith,  Real  &  Pers.  Prop.  939 ;  Terraes  do  Ley 
"  Surrender." 

*  Co.  Lit.  42.  ^  Co.  Lit.  41  b. 

6  1  Cruise,  Dig.  108 ;  Jackson  v.  Van  Hoesen,  4  Cow.  325. 

7  Stewart  v.  Clark,  13  Met.  79. 


CH.  V.  §  1.]  ESTATES   FOR  LIFE.  119 

in  use,  such  a  conveyance  was  deemed  to  work  a  forfeiture 
of  the  tenant's  entire  estate,  upon  the  feudal  notion  that  by 
making  it  he  had  renounced  the  feudal  connection  between 
him  and  his  lord,  and  the  estate  in  remainder  or  reversion 
had  thereby  been  divested  by  the  wrongful  transfer  of  the 
seisin  to  a  stranger,  and  the  remainder-man  or  reversioner 
might  at  once  enter  for  the  forfeiture  upon  his  original  right, 
inasmuch  as  the  tenant  of  the  particular  estate  had  by  his 
own  act  put  an  entire  end  to  his  original  estate.  And 
the  same  principle  applied  in  all  cases  *  where  the  ten-  [*92] 
ant  of  a  particular  estate  conveyed  a  greater  one  than 
he  was  entitled  to.^  But  it  has  never  been  held  a  ground  of 
forfeiture,  that  tenant  for  life  had  made  a  lease  of  the  prem- 
ises for  years.2 

15.  But  if  the  conveyance  be  by  deed  of  bargain  and  sale, 
lease  and  release,  or  any  form  of  deed  under  the  Statute  of 
Uses,  which  is  not  accomplished  by  the  transmutation  of  posses- 
sion, it  would  not,  though  in  form  a  fee,  convey  any  more 
than  the  grantor  had  to  part  with,  and  consequently,  as  it  did 
not  disturb  the  seisin  of  the  reversioner  or  remainder-man,  it 
would  not  work  a  forfeiture.^ 

16.  And  now  under  the  statute  of  8  &  9  Vict.  c.  106,  sect. 
4,  which  declares  that  no  feoffment  made  in  wrong  shall  act 
tortiously,  it  would  seem  that  this  ground  of  forfeiture  is 
removed  in  England.^ 

17.  In  this  country  the  law  seems  to  have  been  generally 
regarded  as  the  same  in  this  respect  as  in  England.  In  those 
States  where  conveyances  have  the  effect  of  feoffments,  ac- 
companied by  livery  of  seisin,  or  may  be  made  by  common 
recoveries,  it  seems  that  a  tenant  for  life  may  work  a  for- 
feiture of  his  land  by  conveying  a  greater  estate  than  he  has.^ 

18.  But  it  is  apprehended  that  this  is  rather  a  theoretic 
than  a  practical  principle,  since  the  deeds  ordinarily  in  use  in 

1  1  Cruise,  Big.  108;  2  Bl.  Com.  274,  275;  5  Dane,  Abr.  6-8;  Co.  Lit.  251, 
252;  Wright,  Ten.  201 ;  Wms.  Real  Prop.  25 ;  Jackson  v.  Mancius,  2  Wend.  365, 

2  Locke  V.  Rowell,  47  N.  H.  50. 

8  1  Cruise,  Dig.  109;  Stearns,  Real  Act.  11;  Stevens  v.  Winship,  1  Pick.  318. 

♦  Wms.  Real  Prop.  122. 

5  2  Sharswood,  Bl.  Com.  121  n. ;  Redfern  v.  Middleton,  1  Rice,  S.  C.  459 ; 
Stump  V.  Findlay,  2  Rawle,  168.  See  Matthews  v.  Ward's  Lessee,  10  G.  & 
Johns.  449. 


120  LAW  OF  REAL  PROPERTY.  [BOOK  1. 

the  conveyance  of  lands,  though  recorded,  do  not  operate  to 
produce  a  forfeiture,  though  the  tenant  thereby  affect  to  con- 
vey a  larger  estate  than  he  has.     Such  deeds  convey  what 

the  grantor  has  and  nothing  more.^ 
[*93]       *19.  Immediately  connected    with  the  doctrine  of 

forfeiture  by  granting  a  larger  estate  than  the  tenant 
for  life  has,  is  that  of  forfeiture  by  disclaiming  the  title  of 
him  under  whom  he  holds,  or  affirming  in  a  court  of  record 
that  the  reversion  is  in  a  stranger,  by  pleading,  and  the  like. 
Although  such  was  the  common  law,  it  has  not,  it  is  believed, 
ever  obtained  in  this  country .^ 

20.  The  estate  for  life  per  autre  vie,  presented,  at  the  com- 
mon law,  several  noticeable  peculiarities  in  certain  contingen- 
cies. Thus,  if  the  tenant  died,  living  the  cestui  que  vie,,  the 
land  was  left  open  without  any  one  having  a  legal  right  to 
claim  it,  —  neither  the  reversioner,  because  the  previous  es- 
tate had  not  expired ;  nor  the  heir  of  the  tenant,  for  his 
estate  was  not  one  of  inheritance  ;  nor  his  executor,  because  it 
was  a  freehold  and  not  a  chattel  interest.  Nor  was  it  deemed 
to  be  devisable.  The  consequence  was,  any  one  who  first 
chose  to  take  possession  might  do  so,  and  was  called  a  gen- 
eral occujjant.^     But  the  doctrine  of  general  occupancy  was 

1  McKee  v.  Pfout,  3  Dall.  486 ;  Pendleton  v.  Vandevjer,  1  Wash.  381 ;  Rogers 
y.  Moore,  11  Conn.  553;  Bell  y.  Twilight,  2  Fost.  500;  Stevens  y.  Winship,  1 
Pick.  318 ;  Walker  Am.  Law,  277  ;  Stearns,  Real  Act.  11 ;  4  Kent.  Com.  84. 
In  Maine  it  is  held,  that  if  tenant  by  curtesy  conveys  in  fee,  he  forfeits  his  estate, 
and  reversioner  may  enter  ;  French  v.  Rollins,  21  Me.  372 ;  and  in  New  Jersey, 
a  similar  principle  prevails  both  as  to  tenants  by  curtesy  and  in  dower  ;  4  Kent, 
Com.  84.  See  also  5  Dane's  Abr.  11-13,  where  a  case  is  cited  that  a  conveyance 
in  fee  in  Massachusetts  in  1784  worked  a  forfeiture.  Also  a  dictum  of  Judge 
Jackson,  in  Grant  v.  Chase,  17  Mass.  446,  to  same  effect.  But  it  is  probably 
true,  that  unless  the  case  of  dower  or  curtesy  forms  an  exception,  a  tenant  for 
life  does  not  in  any  case  work  any  forfeiture  by  conveying,  in  form,  a  greater 
estate  tiian  he  has,  since  only  what  estate  lie  has  passes  by  such  deed  This  is 
declared  to  be  the  law  by  statute  in  many  of  the  States,  namely  :  Alabama,  Code, 
1852,  §  1317 ;  Maine,  Rev.  Stat.  1871,  p.  559  ;  New  York,  1  Stat,  at  Large,  689 ; 
Wisconsin,  Rev.  Stat.  1858,  c.  86,  §4;  Massachusetts,  Gen.  Stat.  c.  89,  §9; 
Minnesota,  Stat.  1866,  p.  328  ;  Michigan,  Comp.  Stat.  1857,  c.  88,  §  4  ;  Grout  v. 
Townshend,  2  Hill,  554 ;  McCorry  v.  King's  Heirs,  3  Humph.  267,  271,  277 ; 
Dennett  v.  Dennett,  40  N.  H.  505. 

2  Co.  Lit.  251,  252  ;  1  Cruise,  Dig.  109  ;  5  Dane,  Abr.  11.  How  far  this  ap- 
plies in  cases  of  terms  for  years,  it  is  not  necessary  here  to  discuss.  See  Jack- 
son V.  Vincent,  4  Wend.  633. 

3  2  BL  Com.  258 ;  Co.  Lit.  41  b  ;  Wms.  Ex'rs,  570. 


CH.  V.  §  1.]  ESTATES    FOR  LIFE.  121 

practically  abolished  by  the  statute  29  Charles  II.  c.  3,  and  14 
Geo.  II.  c.  10,  authorizing  the  tenant  to  devise  it,  or  if  un- 
devised, giving  it  to  his  executors  to  be  administered  as  his 
assets.^     In  Massachusetts  such  estates  go  to  heirs.^ 

21.  But  there  were  many  cases  at  the  common  law  where 
persons  became  what  were  called  special  occupants  of  lands, 
under  the  circumstances  supposed,  growing  out  of  the  rela- 
tion of  such  occupant  to  the  estate,  and  took  the  land  to  the 
exclusion  of  a  mere  stranger.  As,  for  instance,  if  ten- 
ant per  autre  vie  *  made  a  lease  at  will  to  another  and  [*94] 
died,  his  lessee  being  in  possession  became  the  occupant 

of  the  land.^  But  the  application  of  the  term  as  well  as  the 
title  of  "  special  occupant  "  of  such  an  estate  chiefly  arises 
out  of  the  form  in  which  the  original  limitation  of  the  estate 
was  made.  Thus  if  A  takes  an  estate  to  himself,  his  heirs  or 
his  heirs  of  his  body  and  his  assigns  during  the  life  of  another, 
and  dies  in  the  lifetime  of  cestui  que  vie,  his  heirs  would  take 
not  strictly  as  heirs,  but  as  special  occupants  or  persons  who 
are  indicated  to  take  what  is  left  of  the  ancestor's  estate.  If 
the  limitation  had  been  to  him  and  his  executors  and  admin- 
istrators, they  would  take,  in  like  case,  instead  of  his  heirs.* 

22.  But  though  *'  heirs,"  or  "  heirs  of  the  body,"  in  such  a 
limitation  are  not  properly  words  of  inheritance,  and  it  might 
at  first  thought  appear  that  they  would  take  as  purchasers,  if 
at  all,  yet  it  is  well  settled  that  the  ancestor  becomes  the  ab- 
solute owner  of  the  entire  terra  which  he  may  alien  at  his 
pleasure,  and  the  heir  only  takes  what  he  may  have  left  un- 
disposed of.  Thus  where  the  estate  was  to  A  and  his  heirs  for 
the  lives  of  B,  C,  and  D,  and  A  devised  to  J.  S.  without  terms 
of  limitation,  and  J.  S.  died  before  cestuis  que  vie,  it  was  held 
that  the  heirs  of  A  should  take  the  balance  of  the  estate,  and 
not  the  representatives  of  J.  S.^  And  the  quasi  tenant  in  tail 
in  possession  has  complete  power  to  bar  the  entail  and  the 
remainder  over.^ 

1  2  Bl.  Com.  259 ;  Tud.  Cas.  33.  2  Gen.  Stat.  c.  91,  §  1. 

3  Co.  Lit.  41  b,  n.  237  ;  Com.  Dig.  "Estate  by  Grant,"  F.  1. 

4  2  Bl.  Com.  359  ;  Atkinson  v.  Baker,  4  T.  R.  229 ;  Wras.  Ex'rs,  570 ;  Tud. 
Cas.  33. 

5  Doe  V.  Robinson,  8  B.  &  C.  296  ;  Allen  v.  Allen,  2  Dru.  &  War.  807. 

6  Doe  V.  Luxton,  6  T.  R.  289 ;  Allen  v.  Allen,  2  Dru.  &  War.  307  ;  Norton  v. 


122  LAW    OF    REAL    PROPERTY.  [BOOK    L 

[*95]  *23.  But  tliough  the  tenant  for  life  per  autre  vie,  with 
a  quasi  estate  tail  to  the  heirs  of  his  body,  may  convey 
the  estate  by  deed^  it  seems  that,  at  common  law,  he  cannot  do 
it  by  will.  The  heirs  of  his  body  will  take  as  special  occupants, 
by  virtue  of  the  gift  that  created  the  life  estate  in  preference 
to  the  devisee  of  the  tenant.^ 

24.  There  are  duties  as  well  as  rights  incident  to  all  estates 
for  life  which  the  tenants  thereof  are  bound  to  observe,  among 
which  was  that  of  defending  the  title  if  it  was  attacked  in  any 
of  the  real  actions  at  common  law  which  concluded  the  title, 
because  the  interest  of  the  reversioner  or  remainder-man  might 
be  affected  by  the  judgment  which  should  be  rendered  a'jainst 
him.  But  in  order  to  enable  him  to  do  this,  he  might  call 
upon  the  one  who  had  the  inheritance  after  the  determination 
of  his  estate,  to  come  in  and  aid  him  in  making  the  defence. 
This  was  called  "  praying  in  aid."  But  he  might,  if  he  saw  fit, 
go  on  and  defend  without  resorting  to  the  owner  of  the  inher- 
itance, or  those  whose  estates  were  dependent  on  his,  he  being 
in  law  the  proper  tenant  of  the  prmcipe?  The  custom  of 
"  praying  in  aid  "  by  a  tenant  in  a  real  action,  once  existed  in 

Frecker,  1  Atk.  525.  The  subject  is  now  regulated  by  statute,  1  Vict.  c.  26,  §  3,  in 
England,  2  Wms.  Ex'rs  574,  and  generally  by  the  statutes  of  the  several  States. 
Walker's  Am.  Law.  275 ;  Wms.  Real  Prop.  21,  note  by  Eawle ;  4  Kent,  Com. 
27.  In  cases  where  there  is  an  estate  in  A  for  the  life  of  B,  A  has  a  freehold. 
But  if  he  die  before  B,  the  residuum  of  the  estate  is  declared  to  be  a  chattel  in- 
terest, and  treated  as  such  in  Alabama,  Code,  1852,  §  1594  ;  New  York,  1  Stat, 
at  Large,  p.  671  ;  Wisconsin,  Rev.  Stat.  1858,  c.  83,  §  6  ;  Minnesota,  Stat.  1866, 
p  349  ;  Michigan,  Comp.  Law,  1857,  c.  85.  In  Arkansas,  it  is  embraced  and 
treated  as  real  estate,  in  the  law  of  descents  and  distribution,  though  all  real 
estate  is  assets  in  the  hands  of  executors  and  administrators  ;  Dig.  Stat.  1858,  c. 
56,  §  19.  In  North  Carolina,  it  is  deemed  an  inheritance  of  the  deceased  tenant 
per  auire  vie  for  purposes  of  descent ;  Gen.  Stat.  1878,  p.  863.  In  Rhode  Island 
and  Indiana,  it  is  made  devisable  ;  Rev.  Stat.  1857,  c.  154,  §  1  ;  2  Rev.  Stat.  1852, 
p.  208,  §  2.  In  Massachusetts,  it  is  devisable  and  descendible  as  real  estate; 
Gen.  Stat.  c.  91,  §  1.  In  New  Jersey,  it  is  devisable;  but  if  not  devised,  it  goes 
to  executors  or  administrators,  to  be  api)lied  and  distributed  as  personal ;  Nixon, 
Dig.  1855,  p.  878,  §  1.  And  the  same  in  Texas  ;  Oldham  &  White,  Dig.  1859, 
p.  454,  art.  2117.  In  Maryland,  it  forms  a  part  of  personal  assets,  unless  ex- 
pressly limited  to  him  and   his  heirs  ;  Code,  1860,  art.  93,  §  220. 

1  Dillon  V.  Dillon,  1  Ball  &  Beat.  95;  Grey  v.  Mannock,  2  Eden,  341,  and 
note  as  to  Lord  Kenyon's  dictum  in  Doe  v.  Luxton,  6  T.  R.  689;  Campbell  v. 
Sandys,  1  Sch   &  Lef.  295;  Tiid.  Cas.  34 ;  Allen  v.  Allen,  2  Dru.  &  War.  306. 

2  1  Prest.  Est.  207,  208 ;  Stearns,  Real  Act.  99 ;  Termes  de  Ley,  "  Aid.'^ 
Ante,*\%. 


CH.  V.  §  1.]  ESTATES    FOR  LIFE.  123 

Massachusetts,  but  b}'  abolishing  writs  of  right  it  has  been  dis- 
continued.^ And  the  same  effect,  it  ^yould  seem,  has  been  pro- 
duced in  England  by  abolishing  all  real  actions,  except  quare 
iinpedit,  dower  and  ejectment,  by  the  statute  3  &  4  Wm.  IV. 
c.  27,  §  36.2 

24  a.  As  a  general  proposition,  if  a  tenant  for  life  makes  im- 
provements upon  the  premises,  he  cannot  claim  compensation 
for  the  same  from  the  reversioner  or  remainder-man,  though  he 
is  under  no  legal  obligation  to  do  more  than  keep  the  premises 
in  repair.^  As  a  general  proposition,  he  cannot  make  repairs 
or  permanent  improvements  at  the  expense  of  the  inheritance. 
But  he  may  complete  a  mansion-house  which  has  been  begun 
by  a  testator  under  whom  he  holds,  at  the  expense  of  the 
estate.  So  the  expense  of  putting  a  building,  at  first,  into  a 
tenantable  condition,  is  a  charge  upon  the  estate,  but  that  of 
keeping  it  in  repair  is  upon  the  tenant  for  life.^ 

25.  An  important  duty  imposed  upon  every  tenant  for 
life  is  *  that  of  keeping  down  the  interest  upon  existing  [*96J 
incumbrances  upon  the  estate,  though,  as  a  general 
proposition,  he  is  not  bound,  as  between  himself  and  the 
reversioner  or  remainder-man,  to  pay  the  principal  of  any 
moneys  charged  upon  it ;  and  if  he  is  obliged  to  do  so,  he 
becomes  a  creditor  of  the  estate  for  the  amount  so  paid, 
deducting  the  value  of  the  interest  he  would  have  had  to  pay 
as  tenant  for  life  during  his  life.^  On  the  other  hand,  if  a 
tenant  for  life  purchase  in  an  outstanding  incumbrance  upon 
an  estate,  it  is  regarded  as  having  been  done  for  the  benefit 
of  the  reversioner  as  well  as  himself,  if  the  latter  will  contribute 
his  proportion  of  the  sum  paid  therefor.^ 

1  Stearns,  Real  Act.  103 ;  Mass.  Gen.  Stat.  c.  134,  §  1. 

2  Wms.  Real  Prop.  371 ;  1  Spence,  Eq.  Jur.  225. 
!*  Corbet  v.  Lawrens,  5  Rich.  Eq.  301. 

*  Soliier  v.  Eldridge,  103  Mass.  351 ;  Parsons  v.  Winslow,  16  Mass.  361. 

5  1  Story,  Eq.  §  486  ;  Id.  §  488  ;  Warley  v.  Warley,  1  Bailey,  Eq.  397  ;  4  Kent, 
Com.  76;  Saville  v.  Saville,  2  Atk.  463;  Mosely  i'.  Marshall,  27  Barb.  42,  44. 
And,  it  seems,  he  will  not  be  obliged  to  pay  towards  the  interest  anything  beyond 
the  amount  of  the  rents  accruing,  and,  if  he  does,  he  will  be  a  creditor  of  the  es- 
tate for  such  excess.  Kensington  v.  Bouverie,  31  Eng.  L.  &  Eq.  345 ;  Tud.  Cas 
60 ;  Doane  v.  Doane,  46  Vt.  495. 

6  Davies  v.  Myers,  13  B.  Men.  511,  613. 


124  LAW   OP    REAL   PROPERTY.  [bOOK   I. 

25  a.  As  between  tenant  for  life  and  the  remainder-man, 
ordinar}^  taxes  are  to  be  paid  by  the  tenant  for  life  ;  bnt  where 
the  whole  estate  is  snbject  to,  or  to  be  benefited  by  the 
discharge  of  an  incnmbrance  not  created  by  either  of  these, 
equity  apportions  it  between  both,  the  tenant  for  life  being 
to  keep  down  the  interest  during  his  life.  A  betterment 
charge  comes  within  this  category,  being  laid  in  view  of  the 
permanently  increased  value  of  the  premises.  The  tenant 
for  life  must  pay  the  accruing  interest  upon  the  amount  during 
his  life,  and  the  remainder-man,  after  that,  must  pay  the 
principal.^  But  though  the  tenant  for  life  would  be  liable  to 
the  remainder-man  for  contribution  at  the  rates  above  stated, 
if  he  pays  the  charge  in  full,  he  is  not  personally  liable  to  the 
incumbrancer  himself  who  holds  the  charge  upon  the  estate. 
Thus  a  mortgagee  could  not  make  a  personal  claim  upon  the 
tenant  for  life  of  the  mortgaged  estate  if  the  charge  was  not 
created  by  him.^ 

26.  Formerly,  the  mode  of  apportioning  the  payment  of  an 
incumbrance  between  tenant  for  life  and  remainder-man,  was 
one  third  upon  the  former  and  two  thirds  upon  the  latter. 
But  that  is  now  discarded  as  unreasonable.^  In  North 
Carolina,  it  is  said,  the  court  do  not  recognize  any  arbitrary 
rule  in  apportioning  such  a  payment,  each  case  being  generally 
referred  to  the  master  to  settle  by  itself.^ 

27.  The  rule  stated  by  Story,  Eq.  Jur.  §  487,  is  this  :  "  The 
tenant  shall  contribute  beyond  the  interest  in  proportion  to 
the  benefit  he  derives  from  the  liquidation  of  the  debt,  and  the 
consequent  cessation  of  annual  payments  of  interest  during 
his  life  (which,  of  course,  will  depend  upon  his  age  and  the 
computation  of  the  value  of  his  life)."  To  make  a  practical 
illustration  of  this  rule,  whicli  is  only  vague  from  an  almost 
necessary  want  of  definiteness  in  the  application  of  the  terms 
employed,  suppose  a  tenant  for  life,  a  dowress,  for  instance, 
has  been  obliged,  in  order  to  save  her  estate,  to  pay  the  whole 
of  a  mortgage  thereon,  and  the  heir  or  reversioner  wishes  to 

1  Plympton  v.  Boston  Dispensary,  106  Mass.  544. 

2  Morley  v.  Saunders,  L.  R.,  8  Eq.  594. 

3  1  Story,  Eq.  §  487. 

4  Jones  V.  Sherrard,  2  Dev.  &  Bat.  Ch.  179 ;  Atkins  v.  Kron,  8  Ired.  Eq.  1. 


CH.  V.  §  1.]  ESTATES   FOR  LIFE.  125 

redeem  from  her  by  contriLuting  liis  share  of  the  mortgage 
debt.  Or  suppose  he  has  paid  the  whole,  and  she,  in  order  to 
save  her  estate,  wishes  to  contribute  her  share  of  the  debt. 
Assuming  that  she  is  to  pay  the  interest  as  long  as  she  lives, 
except  that  she  is  to  anticipate  and  pay  it  all  at  once  in  a 
gross  sum,  her  share  would  be  wdiat  the  present  worth 
of  an  annuity  equal  to  that  *  interest  would  amount  to,  [*97] 
computed  for  as  many  years  as  by  the  tables  of  the 
chances  of  life,  regard  being  had  to  her  state  of  health,  she 
may  be  supposed  to  live.  Of  course,  the  share  of  the  heir  or 
reversioner  would  be  the  balance  of  the  sum  paid  for  the 
redemption.  And,  if  by  reason  of  the  mortgage  being  upon 
the  whole  of  her  husband's  estate,  she,  as  dowress,  would 
only  be  liable  to  contribute  the  interest  of  one  third  of  the 
debt  to  correspond  with  her  life  interest  in  that  proportion  of 
the  land,  it  can  make  no  difference  in  the  rule,  but  merely 
affects  the  form  of  the  comjDutation.^  The  same  rule  is  applied 
upon  the  sale  of  an  estate  in  which  a  tenant  for  life  and  a 
reversioner  are  interested,  in  apportioning  the  proceeds  between 
them.  So  where  a  mortgage  was  devised  to  one  for  life,  with 
remainder  to  another,  and  the  same  was  redeemed,  the 
redemption  money  was  divided  pro  rata  by  the  same  rule. 
The  value  of  the  life  estate,  in  such  cases,  is  fixed  at  the  time 
of  sale  or  conversion  of  the  estate  into  money,  by  reference 
to  the  common  tables  of  the  chances  of  life.  Nor  would  the 
result  be  affected,  though  the  tenant  for  life  were  to  die  after 
such  conversion  before  any  part  of  the  proceeds  had  been  paid 
over.2 

28.  In  New  York,  where  a  tenant  for  life  neglected  to  pay 
the  taxes  upon  the  land,  a  receiver  was  appointed  to  take  so 
much  of  the  rent  as  might  be  necessary  to  pay  the   taxes. ^ 

1  Swaine  v.  Ferine,  5  Johns.  Ch.  482 ;  Gibson  v.  Crehore,  5  Pick.  146  ;  Saville 
V.  Saville,  2  Atk.  463 ;  Bell  v.  IMayor  of  New  York.  10  Paige,  Ch.  71  ;  House  v. 
House,  10  Paige,  Ch.  158 ;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231.  This  compu- 
tation would  be  made  by  a  master  or  officer  of  the  court.  In  IMas.'sachusetts, 
the  courts  have  made  use  of  Wigglesworth's  Tables,  though  tables  have  been 
adopted  in  general  use  more  full  and  accurate  than  these,  such  as  the  Carlisle 
Tables.  See  the  table  prescribed  by  English  statute.  Matthews'  Ex'rs,  218,  Ap- 
pendix B. ;  Eastabrook  v.  Hapgood,  10  Mass.  315,  n. ;  Abercronibie  v.  Riddle,  3 
Md.  Ch.  324 ;  Dorsey  v.  Smith,  7  Har.  &  J.  367  ;  Foster  v.  Hilliard,  1  Story,  R.  87. 

2  Foster  v.  Hilliard,  1  Story,  77.  3  Cairns  v.  Chabert,  3  Edw.  Ch.  312. 


126  LAW   OF   REAL  PROPERTY.  [BOOK   I. 

And  it  may  be  laid  down,  as  a  duty  uniformly  incumbent  upon 
a  tenant  for  life,  to  pay  all  taxes  assessed  upon  the  land  during 
his  life.^ 

29.  In  Ohio,  if  tenant  for  life  fail  to  pay  the  taxes  assessed 
upon  the  estate,  he  forfeits  the  same  to  the  reversioner  or  re- 
mainder-man who  may  enter.  But  this  is  under  the  provisions 
of  a  statute  of  that  State.^ 

30.  It  is  a  principle  in  the  law  of  landlord  and  tenant,  that 
if  the  tenant  is  evicted  before  the  expiration  of  his  lease  by  a 
better  title  than  that  of  his  lessor,  he  will  not  be  liable  for  rent 
for  the  unexpired  term  during  which  he  had  enjoyed  it ;  and 
one  ground  is,  that  the  contract  being  entire,  such  rent  is  not 
apportionable.  So  if  a  tenant  for  life  underlet  the  premises  for 
a  certain  terra,  reserving  rent  payable  at  a  certain  day,  and  die 
before  that  day,  his  executors  could  not  at  common  law  re- 
cover the  rent  accruing  between  the  last  rent-day  and  the  day 
of  his  death  ;  which  they  might  have  done  had  he  survived  to 
the  beginning  of  the  day  on  which  the  rent  fell  due.^  In 
Alabama,  if  a  life  estate  falls  in  before  the  end  of  the  year,  the 
remainder-man  has  the  rent  accruing  from  the  dea^h  of  the 
tenant  for  life  to  the  end  of  the  year,  subject  to  the  right  of 
emblements.'* 

80  a.  The  possession  of  a  tenant  for  life  is  never  deemed 
to  be  adverse  to  his  reversioner.^  Nor,  if  he  be  disseised,  are 
the  rights  of  the  reversioner  thereby  affected,  and  he  may 
enter  or  sue  an  action  to  recover  possession  within  twenty 
years  after  the  death  of  the  tenant  for  life  without  regard  to 
the  lapse  of  time  during  which  the  desseisor  may  have  held  the 
premises.^  And  if  one  who  enters  upon  land  under  an  agree- 
ment w^ith  a  tenant  for  life,  continue  to  hold  possession  after 

1  Varney  v.  Stevens,  22  Maine,  331,  334;  Prettyman  v.  Walston,  34  111.  192. 

2  McMillan  v.  Robbins,  5  Ham.  28. 

3  Wm.  Clun's  case,  10  Rep.  128;  Fitchburgh  Cotton  Co.  v.  Melvin,  15  Mass. 
268  ;  Perry  v.  Aldrich,  13  N.  H.  343 ;  2  Bl.  Com.  124 ;  3  Cruise,  Dig.  306 ;  Id. 
283. 

4  Price  V.  Pickett,  21  Ala.  741. 

5  Grout  V.  Townsbend,  2  Hill,  554  ;  Austin  v.  Stevens,  24  Maine,  526 ;  Varney 
i;.  Stevens,  22  Maine,  334. 

6  Jackson  v.  Mancius,  2  Wend.  357  ;  McCorry  v.  King's  Heirs,  3  Humph.  867, 
375;  Jackson  v.  Schoonmaker,  4  Johns.  890 ;  Foster  v.  Marshall,  2  Foster,  491  ; 
GiiioD  V.  Anderson,  8  Humph.  825. 


CH.  V.  §  1.]  ESTATES   FOR   LIFE.  127 

his  death,  he  becomes  as  to  the  reversioner  a  mere  tres- 
passer.^ It  has  been  further  held  that  if  the  tenant  for  life 
do  any  act  with  the  property  which  works  a  forfeiture  of  the 
same,  it  only  affects  his  interest,  but  not  that  of  the  rever- 
sion er.^  So  if  the  tenant  does  an  act  by  which  he  incurs  a 
forfeiture  of  the  estate,  the  reversioner  is  not  bound  to  treat 
the  estate  as  merged  in  his  own,  and  enter  immediately ;  he 
may  have  his  action  after  the  death  of  the  tenant  for  life, 
without  being  affected  by  the  previous  possession.  Nor  can  a 
tenant  for  life  who  creates  an  estate  by  grant  or  otherwise  de- 
feat his  grant  by  surrender  to  his  landlord  or  reversioner.^ 

*31.  Where,  however,  as  was  sometimes  the  case,  a  [*98] 
tenant  for  life  had  a  power  to  lease  for  a  term  beyond 
the  period  of  his  own  life,  and  made  such  a  lease,  and  died 
before  the  last  moment  of  the  day  on  which  the  rent  was 
due,  though  within  an  hour  of  midnight,  the  rent  went  to 
the  reversioner,  and  was  not  apportionable,  and  no  part  was 
recoverable  by  the  representatives  of  the  tenant  for  life.  For 
as  the  lease  continued  after  the  life-tenant's  death,  the  rent 
did  not  become  fully  due  till  the  last  moment  of  the  day  on 
which  it  was  reserved.* 

32.  But  now  these  defects  as  to  apportioning  rents  are  sup- 
plied by  the  statute  11  Geo.  II.  c.  19,  §  15,  giving  in  the  first 
case,  a  right  of  action  to  the  executors  of  tenants  for  life  to 
recover  pro  tanto  for  the  time  the  tenant  actually  enjoyed 
the  premises  under  his  lease ;  and  in  the  latter  case,  by  the 
statute  4  &  5  Wm.  IV.  c.  22,  §  2,  apportioning  the  rent  between 
the  tenant  for  life  and  the  reversioner  pro  rata  as  to  time.^ 
The  statute  of  11  Geo.  II.  has  been  re-enacted  in  some  of  the 
States,  and  practically  adopted  through  the  courts  in  others.^ 

1  Williams  v.  Caston,  1  Strobh.  130.        2  Archer  v.  Jones,  26  Miss.  583,  589. 

3  Moore  v.  Luce,  29  Penn.  St.  263. 

*  Strafford  v.  Wentworth,  1  P.  Wms.  180;  Rockingham  v.  Penrice,  LI.  178; 
Norris  v.  Harrison,  2  Madd.  268  ;  Wms.  Ex'rs,  709. 

^  Wms.  Ex'rs,  709  ;  Wms.  Real  Prop.  27.  These  statutes,  it  will  be  perceived, 
relate  to  apportionment  of  rent  in  respect  to  time.  The  effect  of  tenant  being  de- 
prived of  part  of  the  premises,  or  of  lessor  conveying  the  reversion  of  part  of  tlie 
estate  upon  the  apportionment  of  the  rent,  remains  as  at  common  law.  3  Kent, 
Com.  469,  470. 

*>  3  Greenl.  Cruise,  306,  n.  Query,  if  adopted  in  Massachusetts.  Codman  v. 
Jenkins,  14  Mass.  94.     Gen.  Stat.  c.  90,  §  24,  relates  to  a  part  of  the  premises. 


128  LAW  OF  REAL  PROPERTY.  [BOOK  T. 

If  the  lessee  be  tenant  per  autre  vie,  and  the  term  come  to  an 
end  by  the  death  of  the  cestui  que  vie  before  the  day  of  pay- 
ment of  rent,  it  is  not  within  the  language  of  the  statute  of 
11  Geo.  II.,  and  the  rent  is  not  apportionable,  and  cannot  be 
recovered  for  the  time  the  tenant  may  have  occupied  between 
the  last  time  of  payment  and  the  death  of  the  cestui  que  vie.^ 
And  a  like  principle  applies  in  the  case  of  annuities.  If  an 
annuitant  die  before  the  expiration  of  the  period  at  which  the 
annuity  is  payable,  it  is  lost ;  his  representatives  can  recover 
no  part  of  what  is  in  arrear  since  the  prior  day  of  payment. 
Hence  the  importance  of  providing  for  such  contingencies  by 
the  terms  by  which  the  lease  or  annuity  is  created.^ 

33.  A  question  of  some  interest  has,  at  times,  been  made 
in  England,  how  far  a  tenant  for  life  has  a  right  to  possession 
of  the  title-deeds  of  the  estate.  But  it  is  believed  that  un- 
der the  American  system  of  registration  no  such  question  can 
arise.^ 


[*99]  ^SECTION    IL 

OF   ESTOVERS. 

1.  Tenant's  right  to  estovers. 

2.  What  are  estovers. 

3,  4.  Effect  of  tenant  exceeding  his  right  in  taking  estovers. 

6-9.  How  timber,  &c.  must  be  cut  and  used. 

10.  What  trees  constitute  timber,  and  what  firewood. 

11.  Right  to  take  estovers  assignable. 

1.  Among  the  incidents  of  all  estates  for  life,  and  the  same 
is  true  of  estates  for  years,  is  that  to  take  estovers  or  botes 
from  the  premises,  if  they  are  capable  of  supplying  them,  in 
the  way  of  compensation  for  the  duty  of  occupying  and  man- 
aging the  same  in  a  prudent  manner,  and  keeping  the  parts 
thereof  in  suitable  repair.^ 

1  Perry  v.  Aldrich,  13  N.  H.  343.  ^  Wiggin  v.  Swett,  6  Met.  194. 

3  Wms.  Real  Prop.  375,  Rawle's  note. 

*  Cowel,  Interp.  [Estovers),  derives  the  word  from  the  Erench,  estouver,  equiva- 
lent to  fovere,  to  nourish  or  maintain.  "  The  name  estovers  containeth  house-bote, 
hay -bote,  and  plough-bote."     "  Bote,"  says  the  same  author,  "  signifieth  compen- 


CH.  V.  §  2.]  ESTATES    FOR   LIFE.  129 

2.  These  estovers  are  of  three  kinds :  1,  house-bote  ;  2, 
plough-bote  ;  and  3,  hay-bote.  The  first  of  these  is  a  suffi- 
cient allowance  of  wood  to  repair  or  burn  in  the  house.  This 
latter  is  often  called  fire-bote.  The  second,  for  making  and 
repairing  all  instruments  of  husbandry.  The  third,  for  re- 
pairing hedges  or  fences ;  "  hay  "  meaning  "  a  hedge."  And 
these  estovers  must  be  reasonable  in  quantity  or  amount.^ 
It  was  held,  in  applying  this  doctrine  in  one  case,  that  such 
tenant  might  take  a  reasonable  quantity  of  wood  for  fuel,  for 
the  supply  of  himself  and  family,  upon  the  premises,  to  be 
cut  in  a  prudent  and  proper  manner,  and  might  include  a 
reasonable  supply  for  necessary  servants  employed  upon  the 
farm,  and  living  in  the  same  house,  or  another  upon  the 
same  premises.^ 

8.  As  the  destruction  of  growing  timber  and  wood  affects 
the  value  of  the  inheritance,  if  the  tenant  exceed  what  is 
reasonably  necessary  in  cutting  for  the  purposes  above  stated, 
he  would,  to  the  extent  of  such  excess,  be  guilty  of  waste, 
the  consequences  and  nature  of  which  will  be  hereafter  ex- 
plained.^ 

4.  In  the  first  place,  he  must  only  cut  such  timber  or  wood 
as  he  needs  for  present  use.  To  cut  these  in  anticipation  of 
future  use  would  be  waste.*  So  he  must  cut  only  such  as  is 
fit  for  the  purpose.  It  would  be  waste  to  cut  what  was  unfit, 
though  he  exchanged  it  for  what  was  suitable.^ 

5.  In  the  next  place,  the  tenant  must  not  only  cut 

such  *  timber,  &c.  as  is  necessary  for  use,  but  it  must  [*100] 
be  used  by  him  upon  the  premises,  and  not  elsewhere. 
A  widow,  for  instance,  may  not  cut  wood  on  land  which  is 
set  out  to  her  as  dower,  to  burn  in  a  house  upon  other  land. 
He  may  not  cut  timber  and  exchange  it  for  firewood  or  fenc- 
ing-stuff, nor  cut  wood  or  timber  and  sell  it,  though  needed  for 

sation ;  hence  also  comes  our  common  phrase,  'to  give  to  boot,  that  is,  compensa- 
tionis  gratia.' "  See  also  Co.  Lit.  41  b.  Blackstone  derives  estovers  from  estoffer, 
to  furnish.     2  Bl.  Com.  35;  Hubbard  v.  Shaw,  12  Allen,  122. 

1  Co.  Lit.  41  b ;  2  Bl.  Com.  35;  Cowel,  Interp.  "Haye." 

2  Smith  V.  Jevvett,  40  N.  H.  532. 

3  2  Bl.  Com.  122.  See  this  subject  examined,  3  Dane,  Abr.  238,  239.  Post, 
p.  *107 ;  Webster  v.  "Webster,  33  N.  H.  21. 

*  Gorges  v.  Stanfield,  Cro.  Eliz.  593.  ^  Simmons  v.  Norton,  7  Bing.  640. 

VOL.    I.  9 


130  LAW   OF   REAL   PROPERTY.  [BOOK   L 

his  comfort  or  support.^  Nor  can  he  cut  and  sell  wood  to  pay 
the  expense  of  cutting  and  drawing  that  which  he  needs,  and 
used  for  his  own  comfort  upon  the  premises.^  And  where  a 
widow  had  dower  out  of  two  distinct  estates,  with  a  dwelling- 
house  on  both,  but  no  woodland  upon  one  of  them,  it  was 
held,  that  she  could  not  cut  wood  upon  one  of  these  to  burn 
in  the  house  upon  the  other,  though  she  occupied  the  latter 
as  her  dwelling-place.^  Nor  could  she  cut  and  sell  wood  from 
the  premises,  though  she  procured  as  much  for  actual  con- 
sumption upon  the  same  from  other  sources,  and  to  that 
extent  relieved  the  estate  from  the  charge  of  supplying  fire- 
wood.* But  where  there  was  a  farm  and  outlands,  and  it 
had  been  customary  for  the  tenant  to  cut  the  wood  for  the 
dwelling-house  upon  the  outlands,  it  was  held  not  to  be  waste 
in  the  tenant  for  life  to  cut  it  upon  the  farm,  if  such  cutting 
did  not  essentially  injure  the  farm  as  an  inheritance.^ 

6.  If  a  w^idow's  dower  out  of  her  husband's  estate  consist 
of  several  parcels,  and  she  takes  wood  from  one  to  make  re- 
pairs upon  another,  or  to  burn  in  her  dwelling-house  upon 
another,  it  will  not  be  deemed  waste,  though  these  parcels  are 
the  inheritances  of  different  reversioners.^ 

7.  As  an  example  to  test  the  extent  to  which  estovers 
would  be  deemed  reasonable,  the  court  held  that  upon  a  farm 
of  165  acres  the  tenant  might  not  take  firewood  for  two 
houses,  one  the  principal  one,  the  other  that  of  the  farmer  or 
laborer  who  did  the  work  upon  it,  although  it  had  been  cus- 
tomary to  do  so.'^ 

1  Wlute  V.  Cutler,  17  Pick.  248;  Padelford  v.  Padelford,  7  Pick.  152  ;  Fuller  r. 
Wason,  7  N.  H.  341  ;  Richardson  v.  York,  14  Me.  221 ;  Elliott  v.  Smith,  2  N.  H. 
430;  Sarles  v.  Sarles,  3  Sand.  Ch.  601;  Livingston  v.  Reynolds,  2  Hill,  157; 
Simmons  v.  Norton,  7  Bing.  640;  Webster  v.  Webster,  33  N.  H.  21;  Miles  v. 
Miles,  32  N.  H,  147.  In  a  hard  case,  Judge  Story  adopted  somewhat  different 
rules  of  law  in  Loomis  v.  Wilbur,  5  Mass.  13. 

2  Johnson  v.  Johnson,  18  N.  H.  597.  3  Cook  v.  Cook,  11  Gray,  123 
*  Phillips  V.  Allen,  7  Allen,  117. 

5  Webster  v.  Webster,  33  N.  H.  26. 

6  Owen  V.  Hyde,  6  Yerg.  334;  Padelford  v.  Padelford,  7  Pick.  152 ;  Dalton  v 
Dalton,  7  Ired.  Eq.  197.  And  in  New  Hampshire,  by  Stat.  1842,  c.  165,  §  7,  a 
widow  is  authorized  to  take  necessary  fuel  from  her  dower  lands  to  supply  her 
own  residence,  though  not  upon  the  dower  lands. 

7  Sarles  i;.  Sarles,  3  Sand.  Ch.  601.  See  Smith  v.  Jewett,  40  N.  H.  530,  532 : 
Gardiner  v.  Bering,  1  Paige,  673. 


CH.  V.  §  2.]  ESTATES    FOR  LIFE.  131 

8.  Upon  the  principles  above  stated,  a  tenant  has  not  a 
right  to  dig  clay  upon  a  farm  and  make  it  into  bricks  for  sale, 
nor  to  use  wood  from  the  farm  for  their  manufacture.^ 

9.  In  England  a  stricter  rule  is  applied  in  respect  to  allow- 
ing estovers  than  that  in  use  in  this  country,  from  the  differ- 
ent condition  of  the  two  countries  in  respect  to  the  economical 
management  of  estates.  Probably  the  same  rule  would  be 
applied  here  as  there,  that  if  the  tenant  suffers  houses  to  go 
to  decay  and  then  cuts  timber  to  repair  them,  it  would  be 
deemed  double  waste.^  But  it  is  doubtful  if  the  ten- 
ant here  would,  as  there,  be  *  restricted  from  cutting  [*101] 
timber  in  all  cases  for  constructing  new  walls  or  fences, 
though  in  both  he  may  take  sufficient  to  keep  such  fences,  &c., 
in  repair,  as  were  upon  the  premises  when  he  took  them.^ 
And  while  he  is  not  bound  to  repair  a  house  already  ruinous, 
he  ma}^  do  so  with  timber  taken  from  the  premises.* 

10.  But  in  respect  to  what  is  timber  and  what  may  be  used 
for  firewood,  and  whether  the  cutting  of  trees,  though  for 
neither  of  these  uses,  would  be  waste,  depends  upon  the 
usages  of  this  country,  the  customary  mode  of  managing 
lands,  and  the  manner  in  which  the  inheritance  would  be 
affected  by  such  cutting,  rather  than  the  rules  of  the  English 
common  law,  the  rule  here  as  to  waste  being  that  nothing 
which  does  not  prejudice  the  inheritance  or  those  who  are 
entitled  to  the  remainder  or  reversion,  can  be  deemed  waste.^ 
Thus  to  cut  oak-trees  here  for  firewood  is  not,  necessarily, 
waste,  though  it  might  be  in  England.^ 

11.  It  may  be  remarked  that  any  right  of  estovers  belong- 
ing to  a  tenant  would  pass  to  his  or  her  grantee  of  the  estate, 
or  one  who  should  levy  thereon  for  debt.'^ 

1  Livingston  v.  Reynolds,  2  Hill,  157.  2  Co.  Lit.  53  b. 

3  Co.  Lit.  53  b  ;  Miles  v.  Miles,  32  N.  H.  147,  163.  «  Co.  Lit.  54  b. 

8  Pynchon  v.  Stearns,  11  Met.  304 ;  Morehouse  v.  Cotheal,  2  N.  J.  521 . 

6  Padelford  v.  Padelford,  7  Pick.  152.  See,  also,  upon  the  above  points, 
Jackson  v.  Brownson,  7  Johns.  227 ;  Kidd  v.  Dennison,  6  Barb.  9  ;  Crockett  v. 
Crockett,  2  Ohio,  n.  s.  180;  McCulIough  v.  Irvine,  18  Penn.  St.  488;  Webster  u. 
Webster,  33  N.  H.  26. 

T  Fuller  V.  Wason,  7  N.  H.  342 ;  Roberts  v.  Whiting,  16  Mass.  186 ;  Smith  v. 
Jewett,  40  N.  H.  588 ;  Cook  v.  Cook,  11  Gray,  123. 


132  LAW   OF   REAL   PROPERTY.  [bOOK   L 


SECTION    III. 

OF   EMBLEMENTS. 

1.  Tenant's  right  to  emblements. 

2-4.  What  are  emblements,  and  what  right  of  occupancy  incident. 

5,  6.  Origin  of  the  doctrine  of  emblements.  Exception  a-s  to  widows. 

7-9.  What  is  essential  to  claim  of  emblements. 

10.  Tenant  at  sufferance  has  no  riglit  to  emblements. 

11, 12.  Right  to  take  emblements  assignable,  when. 

13,  14.  When  growing  crops  not  emblements. 

15.  Effect  of  disseisor  or  his  grantee  taking  crops. 

16-18.  What  right  of  occupancy  belongs  to  a  right  to  emblements. 

19,  20.  Usage  as  affecting  right  to  emblements. 

21,  22.  Emblements  claimed  against  mortgages  or  judgments. 

1.  Another  of  the  important  rights  which  a  tenant  for  life 
has,  as  also  other  tenants  of  estates  of  uncertain  duration,  is 
that  of  emblements,  or  profits  of  the  crop  (emblavence  de  bled), 
which  the  law  gives  to  him,  or  if  he  is  dead,  to  his  executors 
or  administrators,  to  compensate  for  the  labor  and  expense  of 

tilling,  manuring,  and  sowing  the  land.^ 
[*102J       *2.  These  crops  are  such  as  are  the  growth  of  annual 

planting  and  culture,  and  the  right  to  take  them  after 
the  termination  of  the  tenancy  rests  partly  upon  the  idea  of 
compensation,  but  chiefly  upon  the  policy  of  encouraging 
husbandry,  by  assuring  the  fruits  of  his  labor  to  the  one  who 
cultivates  the  soil.^  The  term  emblements  is  applied  also  at 
common  law  to  annual  crops  growing  upon  the  land  of  one 
who  dies  before  they  are  harvested.  At  common  law,  they 
go  to  his  personal  representatives  rather  than  his  heirs.  But 
in  Mississippi,  such  crops  go  to  the  heir,  unless  the  judge  of 
probate  appropriates  them  to  the  executor  or  administrator 
to  be  administered.^ 

3.  It  will  be  seen,  hereafter,  that  the  right  to  emblements 
carries  with  it  that  of  entering  upon  and  cultivating  the  land, 
and  harvesting  the  crops  when  ripe.* 

1  Wms.  Ex'rs,  597  ;  Co.  Lit.  55  a. 

2  2  Bl.  Com.  122;  Co.  Lit.  55  b;  Stewart  w.  Doughty,  9  Johns.  108;  1 
RoUe,  Abr.  726,  c.  9. 

8  McCormick  v.  McCormick,  40  Miss.  763  ;  Penhallow  v.  Dwight,  7  Mass.  34 ; 
1  Wms.  Ex'rs,  594  ;  2  Redfield,  WiUs,  143. 
*  Co.  Lit.  56  a ;  post,  p.  *105. 


CH.  V.  §  3.]  ESTATES   FOE  LIFE.  133 

4.  Among  the  crops  which  are  enumerated  ag  being  among 
the  subjects  of  emblements,  are  corn,  peas,  beans,  tares,  hemp, 
flax,  saffron,  melons,  potatoes,  and  the  like,  and  grasses,  such 
as  sainfoin,  which  are  annually  renewed.  And,  by  way  of 
exception  to  the  general  rule,  hops  are  the  subject  of  emble- 
ments, because,  though  grown  on  permanent  roots,  they 
require  annual  training  and  culture  to  produce  at  all.^  But 
they  do  not  include  clover  or  other  grasses  that  endure  more 
than  one  year,  nor  the  fruits  of  trees  growing  upon  the  land 
though  planted  by  the  tenant,  because  he  knows  when  he 
plants  them  that  they  cannot  come  to  maturity  and  produce 
their  fruit  in  a  single  year  to  repay  the  labor  bestowed  upon 
their  planting  and  culture.^  Though  it  seems  that  trees, 
shrubs,  «&c.,  planted  by  gardeners  and  nursery-men  simply  for 
sale,  may  be  considered  as  embraced  under  emblements  as 
between  executor  of  tenant  for  life  and  remainder-man  or 
reversioner.^ 

5.  This  doctrine  of  emblements  was  borrowed  from  the 
feudal  law,  whereby,  if  the  tenant  died  between  the  1st  of 
September  and  the  1st  of  March,  the  lord  took  the  profits  of 
the  land  for  the  year ;  if  between  the  1st  of  March  and  the 
1st  of  September,  the  heirs  of  the  tenant  had  them.'^ 

6.  There  was  an  exception,  at  common  law,  in  re- 
spect to  *  emblements  in  case  of  a  dowress,  because  [*103] 
it  was  presumed  that  when  her  husband  died  she  took 
the  estate  with  the  crops  upon-  it,  and  therefore,  though  she 
died  after  having  planted  a  crop,  it  went  to  the  reversioner. 
But  by  the  statute  of  Merton,  20  Hen.  III.  c.  2,  the  growing 
crop  might  be  devised  by  her,  or  would  go  to  her  executors.^ 
7.  But  it  is  essential  to  the  claim  of  emblements,  at  the 
common  law,  that  the  crop  should  have  been  actually  planted 
during  the  life  and  occupancy  of  the  tenant.  No  degree 
of  preparation  of  the  ground  will  give  to  one  the  fruits  of 

1  Wms.  Ex'rs,  597;  2  Sharswood,  Bl.  Cora.  123,  n. ;  Com.  Dig.,  "  Biens,  G. 
1  "  ;  Co.  Lit.  55  b,  n.  364  ;  Forbes  v.  Shattuck,  22  Barb.  568,  that  wheat  straw  is 
emblements,  and  belongs  to  the  tenant. 

2  Wms.  Ex'rs,  598,  599;  Evans  v.  Inglehart,  6  Gill  &  J.  188;  Reiff  v.  Reiff, 
64  Penn.  St.  134,  137. 

3  Penton  v.  Robart,  2  East,  88 ;  Taylor,  Land.  &  Ten.  81. 

*  2  Bl.  Com.  123.  5  Co.  2d  Inst.  80. 


134  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

seed  planted  by  another  after  the  determination  of  his  ten- 
ancy.i 

8.  In  order  to  entitle  tenant  or  his  executors  to  emblements, 
the  estate  which  he  has  must,  in  the  first  place,  be  uncertain 
in  its  duration.  If  he,  knowing  it  will  terminate  before  he 
can  gather  his  crop,  plants  it,  it  is  his  own  folly  or  generosity 
to  his  successor  who  will  take  it.^  So  where  one  entered  under 
an  agreement  of  purchase  and  sale  of  the  land  between  him 
and  the  owner,  and  planted  crops,  and  the  land-owner  then 
refused  to  convey  the  land,  the  tenant  was  held  to  be  en- 
titled to  the  same  as  emblements  on  the  ground  -that  he  had 
been  occupying  as  a  tenant  at  will.^  But  where  one  was  in  pos- 
session of  land  for  the  recovery  of  which  by  an  adverse  claim- 
ant a  suit  was  pending  against  him,  he  let  the  same  to  one 
cognizant  of  the  suit,  and  he  planted  crops,  and  before  they 
were  gathered  the  claimant  prevailed  in  his  suit  and  expelled 
the  tenant,  it  was  held  that  he  could  not  claim  the  crop  as 
emblements.* 

9.  So,  in  the  second  place,  the  tenancy  must  be  determined 
by  the  act  of  God,  as  by  death  of  the  tenant,  or  the  act  of 
the  lessor  in  expelling  him  or  terminating  his  lease  ;  for  if 
the  tenant  abandons  the  premises,  or  voluntarily  puts  an  end 
to  the  tenancy,  he  has  no  right  to  claim  emblements.^  Thus, 
if  a  woman,  tenant  during  widowhood,  marry,  she  loses  her 
right  to  emblements.^  And  these  principles  apply  in  cases  of 
tenancies  at  will.'^ 

10.  But  a  tenant  at  sufferance  is  not  entitled  to  emble- 


1  Price  V.  Picket,  21  Ala.  741 ;  Gee  v.  Young,  1  Hay w.  17 ;  Stewart  v. 
Doughty,  9  Johns.  108 ;  Taylor,  Land.  &  Ten.  82 ;  Thompson  v.  Thompson,  6 
Munf.  514. 

2  Debow  V.  Colfax,  5  Halst.  128 ;  Kittredge  v.  Woods,  3  N.  H.  503 ;  Whit- 
marsh  V.  Cutting,  10  Jolins.  360 ;  Taylor,  Land.  &  Ten.  81 ;  Chesley  v.  Welch, 
37  Me.  106  ;  Harris  i;.  Carson,  7  Leigh,  632  ;  Termes  de  Ley,  "  Emblements." 

3  Harris  v.  Frink,  49  N.  Y.  24.  *  Roweil  v.  Klein,  44  Ind.  290. 

5  See  cases  above  cited,  Whitmarsh  v.  Cutting,  10  Johns.  360 ;  Chesley  v. 
Welch,  37  Me.  106;  2  Bl.  Com.  123  ;  Gland's  case,  5  Rep.  116;  Chandler  v. 
Thurston,  10  Pick.  210. 

6  Hawkins  v.  Skegg,  10  Humph.  31 ;  Debow  v.  Colfax,  5  Halst.  128. 

'  Termes  de  Ley,  "  Emblements  "  ;  Davis  v.  Thompson,  13  Me.  209  ;  Davis 
V.  Brocklebank,  9  N.  H.  73  ;  Sherburne  v.  Jones,  20  Me.  70  ;  Stewart  v.  Doughty, 
9  Johns.  108;  Gland's  case,  5  Rep.  116  ;  Chandler  v.  Thurston,  10  Pick.  205. 


CH.  V.  §  3.]  ESTATES   FOR  LIFE.  135 

ments.i  But  where  a  purchaser  under  a  foreclosure  sale 
suffered  the  tenant,  either  mortgagor  or  claiming  under  him, 
to  occupy  the  premises  without  interference,  for  the  term  of 
three  months,  and  in  the  mean  time  to  go  on  and  manage  it, 
and  plant  crops,  it  was  held  to  give  the  tenant  a  right  to 
claim  these  as  emblements.^ 

*11.  This  right  to  emblements  is  not  limited  to  the  [*104] 
original  lessee  or  tenant  for  life,  unless  he  is  restricted 
by  the  terms  of  his  lease  from  underletting  or  assigning  his 
term.  His  assignee,  grantee,  or  sub-lessee,  not  only  has  a 
claim  for  the  same  emblements  as  the  original  tenant,  but  in 
some  cases  may  claim  these  where  the  former  could  not  him- 
self have  made  such  claim.  Thus  if  the  original  tenant  were 
to  forfeit  his  estate  by  failing  to  perform  a  condition,  or  by 
committing  a  breach  of  a  condition  prescribed  in  his  lease,  he 
would  thereby  lose  all  right  to  the  emblements.  But  if,  be- 
fore such  breach  on  his  part,  he  should  assign  or  underlet  to 
another,  and  the  estate  should  be  defeated  by  such  breach, 
his  under-tenant  or  assignee  would,  nevertheless,  be  entitled 
to  the  growing  crop  which  he  had  planted.  As,  for  instance, 
if  a  tenant  during  widowhood  should  underlet  and  then 
marry,  though  she  would  by  so  doing  lose  her  own  right  to 
emblements,  her  tenant  would  not,  because  he  was  not  in 
fault.3 

12.  But  if  the  tenant,  having  planted  the  crop,  sell  it  as  a 
growing  crop,  and  then  terminates  his  estate  by  his  own  act, 
the  vendee  will  have  no  better  rights  in  respect  to  such  crop 
than  the  lessee  himself,  and  cannot  claim  them  as  emble- 
ments.^ 

13.  If  the  owner  of  land  on  which  he  has  planted  a  crop 
sells  the  land,  it  passes  a  complete  title  to  the  crop.  And  if 
he  convey  a  reversion,  subject  to  an  existing  particular  estate, 
it  carries  with  it,  as  incident  to  such  reversion,  the  same  rights 
in  respect  to  crops  growing  on  the  premises  which  the  grantor 
himself  has.^ 

1  Doe  V.  Turner,  7  M.  &  W.  226.  2  Allen  v.  Carpenter,  15  Mich.  38. 

3  2  Bl,  Com.  124;  Bevans  v.  Briscoe,  4Har.  &  J.  139;  Taylor,  Land.  &  Ten. 
81 ;  Davis  v.  Eyton,  7  Bing.  154  ;  Tud.  Cas.  62  ;  Bulwer  v.  Bulwer,  2  B.  &  Aid. 
470.    Contra,  Gland's  case,  5  Rep.  116;  Bittinger  v.  Baker,  29  Penn.  70. 

*  Debow  V.  Colfax,  5  Halst.  128. 

*  Foote  V.  Colvin,  3  Johns.  216  ;  Burnside  v.  Weightman,  9  Watts,  46 


136  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

14.  If  the  owner  of  land  plant  crops  and  then  conveys  the 
estate  to  one  for  life,  with  remainder  over  in  fee,  and  the  ten- 
ant for  life  dies  before  the  crop  is  gathered,  it  will  not  go  to 

the  personal  representatives  of  the  tenant  for  life,  be- 
[*105J   cause  *  he  did  not  plant  it,  but  to  the  remainder-man 

as  a  part  of  the  inheritance.^  So  if  a  woman  seised 
for  life  or  in  fee  sow  her  land  and  marry,  and  her  husband  die 
before  the  crop  is  severed,  she  and  not  his  representatives 
shall  have  the  crop.^  But  if  the  husband  of  tenant  for  life 
sow  crops  and  she  dies,  he  will  be  entitled  to  the  emblements.^ 
And  in  the  case  above  supposed,  if  the  grant  for  life  had  been 
to  husband  and  wife  and  the  survivor,  and  the  husband  had 
died,  the  wife  would  have  taken  the  crops  instead  of  the  rep- 
resentatives of  the  husband.^ 

15.  If  a  disseisor  take  the  crops  growing  upon  the  prem- 
ises, and  the  disseisee  recover  possession  of  the  land,  he  may 
have  trespass  for  such  taking  against  the  disseisor.  But  if 
the  disseisor  make  a  feoffment  or  lease  of  the  premises,  and 
the  feoffee  or  lessee  take  the  crops,  the  disseisee  cannot  have 
trespass  for  such  taking,  even  after  regaining  possession,  for 
the  tenant  came  in  by  title.^ 

16.  To  avail  himself  of  the  emblements,  it  is  obvious  that 
the  tenant  or  his  representative  must  have  some  right  of  entry 
or  occupancy  of  the  land  itself;  and  if  the  tenancy  is  deter- 
mined by  death  or  otherwise  soon  after  the  planting  of  a  crop, 
this  right  may  of  necessity  be  continued  for  some  months. 
The  extent  of  this  right  may  be  stated  to  be  this :  He  may 
enter  upon  the  land,  cultivate  the  crop  if  a  growing  one,  cut 
and  harvest  it  when  fit,  and  if  interfered  with  in  the  reason- 
able exercise  of  these  privileges  by  the  landlord  or  reversioner, 
or  if  the  crop  be  injured  by  him,  he  may  have  an  action  for 
the  same.^ 

17.  But  this  does  not  give  him  a  right  to  exclusive  posses- 
sion of  the  land,  but  merely  the  right  of  ingress  and  egress  for 

1  Wms.  Ex'rs,  602 ;  Grantham  v.  Hawley,  Hob.  132. 

2  Tud.  Cas.  62,  cites,  Vin.  Abr.  "  Emblements." 

8  Spencer  v.  Lewis,  1  Houst.  223.  *  Haslett  v.  Glenn,  7  Har.  &  J.  17. 

6  Termes  de  Ley,  "  Emblements  " ;  Richard  Liford's  case,  11  Rep.  51. 
6  Forsythe  v.  Price,  8  Watts,  282. 


CH.  V.  §  3.]  ESTATES    FOR   LIFE.  137 

the  purposes  above  mentioned,  while,  for  all  other  purposes, 
the  landlord  or  reversioner  is  in  exclusive  possession.^ 

18.  A  question  has  been  raised  whether  for  this  qualified 
occupation  of   land,  the  tenant   or   his  executors  would  be 
chargeable  for  rent,  or  be  bound  to  make  compen- 
sation.    Plowden  raises  *  the  query  and  seems  to  in-  [*106] 
cline  to  the  opinion  that  they  would  be,  except  in  case 

of  executors  of  tenant  in  fee.     And  this  query  is  repeated  by 
Williams  in  his  treatise  on  executors.'^ 

19.  Though  the  question,  what  are  lawful  estovers  and  em- 
blements, is  pretty  well  defined  by  the  common  law,  it  is  held 
in  this  country  that  they  often  depend  upon  the  usages  and 
customs  of  different  localities,  and,  though  this  will  be  further 
discussed  in  connection  with  the  subject  of  waste,  it  may  be 
proper  here  to  refer  to  some  of  these  customs  ;  usage,  where  it 
is  applied,  being  considered  as  entering  into  and  forming  a 
part  of  the  contract  or  title  by  which  the  tenant  holds.^ 

20.  Thus  it  is  held  a  good  and  valid  custom  in  Pennsyl- 
vania, New  Jersey,  and  Delaware,  that  if  the  tenant  sows 
crops  in  the  autumn,  which  will  not  be  ready  for  harvesting 
till  the  next  autumn,  he  may  claim  them  as  emblements,  al- 
though, in  the  mean  time,  his  lease  may  have  expired.*  So 
it  was  held  in  Ohio,  that  the  parties  to  a  lease  in  which 
nothing  is  said  of  the  way-going  crop,  will  be  governed  by 
the  custom  of  the  place  in  which  the  land  is  situate.  Thus 
where  a  lease  ended  on  the  1st  April,  the  tenant  was  held  to 
be  entitled  to  a  crop  of  wheat  then  growing  thereon.^  And 
the  same  doctrine  is  applied  in  Maryland.^ 

1  Humphries  v.  Humphries,  3  Ired.  362;  Wms.  Ex'rs,  605;  Lit.  §  68. 

'^  Plowd.  Queries  (at  the  end  of  his  Reports),  239  ;  Wms.  Ex'rs,  605. 

3  Van  Ness  v.  Pacard,  2  Pet.  148 ;  Taylor,  Land.  &  Ten.  82,  83 ;  Stultz  v. 
Dickey,  5  Binn.  285. 

*  Van  Doren  v.  Everitt,  2  South,  460 ;  Templeman  v.  Biddle,  1  Harring.  522 ; 
Smith,  Land.  &  Ten.  258,  Morris's  Notes.  But  this  is  not  uniformly  true,  for  a 
tenant  could  not  thus  sow  his  ground  with  oats  and  claim  to  occupy  till  they 
were  ripe  after  the  natural  expiration  of  his  lease,  if  sown  for  instance  in  March, 
and  the  lease  expires  in  April.     Howell  v.  Schenck,  4  Zab.  89. 

5  Foster  v.  Robinson,  6  Ohio  St.  95,  where  the  court  cite,  as  to  custom  mak- 
ing law,  Wiggles  worth  v.  Dallison,  Doug.  201 ;  Hutton  u.  Warren,  1  Mees.  &Welsb. 
466. 

6  Dorsey  v.  Eagle,  7  G.  &  J.  331. 


138  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

21.  Although  the  principle  that  the  tenant  who  sows  a  crop 
shall  reap  it,  if  the  term  of  his  tenancy  is  uncertain,  is  so 
broad  and  so  nearly  universal  in  its  application,  yet  if  a  mort- 
gagee forecloses  his  mortgage,  whatever  crops  are  then  grow- 
ing upon  the  mortgaged  premises,  if  planted  after  the  mort- 
gage is  made,  become  the  mortgagee's,  whether  planted  by 
the  mortgagor  or  by  his  tenant,  free  from  any  claim  upon 
them  by  such  tenant.^  But  a  foreclosure  after  the  crops  are 
severed  does  not  carry  an  interest  in  them  to  the  mortgagee 
or  purchaser.2 

22.  The  foregoing  doctrine  in  respect  to  the  rights  of  a 
mortgagee  would  probably  be  limited  to  cases  where  a  mort- 
gage creates  an  estate  in  the  land.  But  in  the  case  of  a  judg- 
ment lien,  a  different  rule  prevails.  A  tenant  who  hires  land 
subject  to  such  a  lien,  and  plants  crops  upon  the  same  before 
a  sale  of  the  premises  made,  may  claim  them  against  a  pur- 
chaser under  a  sheriff's  sale.^ 

1  Lane  v.  King,  8  Wend.  584  ;  Shepard  v.  Philbrick,  2  Denio,  174  ;  Crews  v. 
Pendleton,  1  Leigh,  297  ;  Gillett  v.  Balcom,  6  Barb.  370 ;  Jones  v.  Thomas,  8 
Blackf.  428  ;  Howell  v.  Schenck,  4  Zab.  89. 

2  Buckout  V.  Swift,  27  Cal.  438  ;  Codrington  i'.  Johnstone,  1  Beav.  520. 

8  Bittinger  v.  Baker,  29  Penn.  St.  66,  overruling  the  cases  of  Sallade  v.  James, 
6  Penn.  St.  144,  and  Groff  v.  Levan,  16  Penn.  St.  179. 


CH.  V.  §  4.]  ESTATES   FOR   LIFE.  139 

♦SECTION  IV.  [*107] 

OF   WASTE. 

1.  Tenant  may  not  commit  waste. 

2,  3,  What  constitutes  waste. 

4.  English  rules  not  always  applicable  here  as  to  waste. 

5.  Waste  in  cutting  or  injuring  trees.    What  are  timber  trees. 
6,  7.  Rules  as  to  cutting  trees  being  waste,  in  this  country. 

8.  Where  wood  cut  belongs  to  the  one  who  cuts  it. 

9.  Other  improvements  on  an  estate  no  defence  as  to  waste  done. 
10.    What  acts  of  cutting  trees  are  or  are  not  waste. 

11-14.  Rights  of  dowress  to  cut  timber,  &c. 

15.  When  cutting  trees  is  trespass  and  not  waste. 

16-19.  Waste  in  opening  pits,  mines,  quarries,  &c. 

20-22.  Waste  by  improper  cultivation  of  land. 

23-25.  Waste  in  buildings,  what. 

26.  Rule  as  to  what  is  waste  to  buildings. 

27.  Instances  of  alleged  acts  of  waste. 

28.  Waste  by  removing  buildings. 

29.  Waste  in  respect  to  fences  and  houses  going  to  decay. 
80-33.  To  what  extent  tenants  bound  to  repair. 

34.  For  what  acts  of  waste  tenant  is  excused. 

35.  Tenant  liable  for  acts  of  waste  by  strangers. 

36,  37.  How  far  tenant  is  liable  for  waste  by  accidental  fires. 

88-42.  Of  the  remedy  against  tenant  for  waste. 

43.  If  tenant  repairs  before  suit,  it  bars  the  action. 

44-47.  Effect  of  want  of  privity  upon  action  of  waste. 

48.  Action  on  the  case,  &c.,  for  waste. 

49, 50.  As  to  property  in  trees  cut  in  committing  waste. 

61.  Chancery  restrains  wilful  waste,  though  tenant  is  without  im- 

peachment. 

52.  Ministers  liable  for  waste  on  glebe  lands. 

53-57.  How  far  statutes  of  Gloucester,  &c.  adopted  here. 

58.  Actions  on  the  case,  rather  than  of  waste,  in  use. 

59.  Ordinary  remedy,  now  sought  in  chancery. 
60, 61.  In  what  cases  equity  will  enjoin  acts  of  waste. 

62.  In  what  cases  equity  gives  compensation  for  waste. 

63,  64.     Provisions  for  cutting  timber,  making  improvements,  &c. 

1.  An  important  disability  to  which  all  tenants  for  life  as 
well  as  for  years  are  subject,  is  that  of  not  committing  waste 
or  doing  or  suffering  that  to  be  done  upon  the  premises  which 
essentially  injures  or  impairs  the  inheritance  of  the  estate 
occupied  by  the  tenant.  This  restriction  existed  at  common 
law  in  respect  to  estates  in  possession  of  tenants  in  dower 


1-10  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

and  curtesy,  because  as  these  were  created  bj^  the  law  itself, 
it  was  thought  that  the  law  w>as  bound  to  protect  the  rever- 
sioner or  remainder-man  fi-om  being  thereby  injured.  But 
where  the  estate  of  the  tenant  was  created  by  act  of  the  par- 
ties, it  was  held  that  if  the  grantor  or  lessor  failed  to  protect 
the  estate  by  stipulations  in  his  deed  or  lease,  the  law  was  not 
bound  to  supply  the  omission.  To  remedy  this  defect  the 
statute  of  Marlbridge,  52  Hen.  III.  c.  24,  was  passed,  whereby 
'*  ferraors  during  their  terms,  shall  not  make  waste,  sale,  nor 
exile  of  house,  woods,  and  men,  nor  of  anything  belonging  to 
the  tenements  that  they  have  to  ferm,"  and  were  made  liable 
to  "  yield  full  damage  "  for  so  doing.  And  it  is  said  "■firmarii 
do  comprehend  all  such  as  hold  by  lease  for  life  or  lives  or 
for  years,  by  deed  or  without  deed."  By  this  statute  only 
single  or  actual  damages  were  recoverable  for  waste  commit- 
ted. But  by  the  statute  of  Gloucester,  6  Edw.  I.  c.  5,  the 
party  committing  the  injury  in  an  action  of  waste  lost  the 
place  wasted  and  treble  damages,  or  "  thrice  so  much  as 
the  waste  shall  be  taxed  at."  ^ 

2.  In  respect  to  what  is  embraced  under  the  term  waste,  it 
is  divided  into  that  which  is  voluntary  and  that  which  is  per- 
missive, the  one  being  by  some  act  done  which  injures  the 
inheritance,  the  other  by  omitting  some  duty  which  causes 
an  injury  to  result  to  the  inheritance.  To  tear  a  house  down 
is  voluntary  waste  ;  to  suffer  it  to  go  to  decay  for  want  of 
necessary  repair,  is  permissive.  This  will  be  found  an  im- 
portant distinction  in  its  consequences.^ 
[*108]  *3.  But  whatever  the  act  or  omission  is,  in  order  to 
its  constituting  waste,  it  must  either  diminish  the  value 
of  the  estate,  or  increase  the  burdens  upon  it,  or  impair  the 
evidence  of  title  of  him  who  has  the  inheritance.^  Waste,  in 
short,  may  be  defined  to  be  whatever  does  a  lasting  damage 
to  the  freehold  or  inheritance,  and  tends  to  the  permanent 
loss  of  the  owner  in  fee,  or  to  destroy  or  lessen  the  value  of 
the  inheritance.* 

1  Co.  2  Inst.  144,  145  ;  Id.  299;  Sackett  v.  Sackett,  8  Pick.  312-315. 

2  3  Dane,  Abr.  214;  2  Bl.  Com.  281. 

8  Huntley  v.  RusseU,  13  Q.  B.  588;  2  Bl.  Com.  281 ;  3  Dane,  Abr.  215. 
<  McGregor  v.  Brown,  10  N.  Y.  117  ;  Proffitt  v.  Henderson,  29  Mo.  327. 


CH.  V.  §  4.]  ESTATES   FOR   LIFE.  141 

4.  In  applying  this  rule  it  will  be  found  that  many  acts 
which  in  England  would  be  waste,  will  not  be  such  here,  in 
consequence  of  the  difference  in  the  condition  of  the  two 
countries.  And  it  often  becomes  a  question  for  a  jury  to 
determine  whether  a  certain  act  be  or  be  not  waste,  without 
referring  to  a  criterion  drawn  from  any  other  country.  The 
rule  as  to  what  constitutes  waste  is  uniform.  Its  application 
depends  upon  the  condition  and  usages  of  the  place  where  it 
is  to  be  made.^ 

5.  The  first  branch  of  the  subject,  as  it  is  generally  treated, 
relates  to  felling,  lopping,  or  injuring  growing  trees  upon  the 
premises.  The  rule  of  the  common  law  is  that  to  fell  timber, 
to  lop  it,  or  to  do  any  act  which  causes  it  to  decay,  is  uni- 
formly waste.2  "  Oak,  ash,  and  elm,  be  timber  trees  in  all 
places ; "  beeches  in  Buckinghamshire,  and  birches  in  Berk- 
shire, are  so  regarded ;  but  hornbeams,  hazels,  and  willows, 
are  never  timber  ;  and  yet  if  standing  in  defence  or  safeguard 
of  the  house  or  land,  it  would  be  waste  to  cut  them ;  so  it 
would  be  to  "stub  up"  a  quickset  hedge  of  white-thorn.^ 
The  same  would  be  the  rule  as  to  shade  and  ornamental  and 
fruit-trees,  unless  past  bearing.* 

6.  In  the  United  States,  whether  cutting  of  any  kind  of 
trees  in  any  particular  case  is  waste,  seems  to  depend  upon 
the  question  whether  the  act  is  such  as  a  prudent  farmer 
would  do  with  his  own  land,  having  regard  to  the  land  as  an 
inheritance,  and  whether  the  doing  it  would  diminish  the 
value  of  the  land  as  an  estate.^ 

*7.   Questions  of  this  kind  have  frequently  arisen  [*109] 

1  3  Dane,  Abr.  232 ;  Pynchon  v.  Stearns,  11  Met.  804 ;  Keeler  v.  Eastman,  11 
Vt.  393;  Jackson  i'.  Tibbits,  3  Wend.  341 ;  Jackson  v.  Brownson,  7  Johns.  227  ; 
Walker,  Am.  Law,  278 ;  Kidd  v.  Dennison,  6  Barb.  9  ;  3  Dane,  Abr.  214 ;  Lynn's 
Appeal,  31  Penn.  46  ;  Drown  v.  Smith,  52  Me.  143. 

2  Co.  Lit.  53  a ;  2  Bl.  Com.  281 ;  Taylor,  Land.  &  Ten.  166. 

8  Co.  Lit.  53  a ;  3  Dane,  Abr.  218  ;  Id.  233  ;  Tud.  Cas.  65 ;  Honywood  v.  Hony- 
wood,  L.  R.  18,  Eq.  306,  limits  oak,  ash,  or  elm,  as  timber  to  their  being  twenty 
years  of  age,  and  not  too  old  to  have  usable  wood  in  them. 

*  8  Dane.  Abr.  217 ;  Id.  233. 

5  Givens  v.  McCalmont,  4  Watts,  460 ;  Chase  v.  Hazelton,  7  N.  H.  171 ;  Keeler 
V.  Eastman,  11  Vt.  293 ;  Shine  v.  Wilcox,  1  Dev.  &  Bat.  Eq.  631 ;  Smith  v.  Poyas, 
2  Desaus.  65;  Hickman  v.  Irvine,  8  Dana,  121 ;  Parkins  i'.  Coxe,  2  Hayw.  339 
(Martin  &  Hayw.  517).     See  Phillips  v.  Smith,  14  M.  &  W.  594,  n.  to  Am.  ed. 


142  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

in  those  States  where  the  lands  are  new  and  covered  with 
forests,  and  where  they  cannot  be  cultivated  until  cleared  of 
the  timber.  In  such  case,  it  seems  to  be  lawful  for  the  ten- 
ant to  clear  the  land  if  it  would  be  in  conformity  wdth  good 
husbandry  to  do  so,  the  question  depending  upon  the  custom 
of  farmers,  the  situation  of  the  country,  and  the  value  of  the 
timber.  The  jury  are  in  each  case  to  determine  whether  by 
clearing  the  lands  the  tenant  has  cut  so  much  timber  as  to 
injure  the  inheritance.^ 

8.  Wood  cut  by  a  tenant  in  clearing  the  land  belongs  to 
him,  and  he  may  sell  it,^  though  he  cannot  cut  the  wood  for 
purposes  of  sale ;  it  is  waste  if  he  does.^ 

9.  Nor  can  the  tenant  when  sued  for  cutting  and  selling 
timber,  recoup  or  make  counter  claim  for  improvements  made 
by  him  upon  the  premises  at  another  time.^ 

10.  In  applying  these  rules  it  has  been  held  not  to  be  waste 
in  Vermont  to  cut  and  remove  dead  or  decaying  timber  in 
order  to  clear  the  land  and  give  the  young  trees  a  chance  to 
grow.^  In  Massachusetts,  cutting  oak-trees  for  fuel  is  not  in 
itself  waste,  because  of  the  common  usage.  Though  it  would 
be  so  if  they  were  sold  for  timber,  even  if  the  money  was  ap- 
plied to  purchase  firewood  for  the  use  of  the  tenant.^  And 
where  land  was  appendant  in  its  use  to,  and  let  with,  a  fur- 
nace, it  was  held  not  to  be  waste  to  cut  wood  from  the  prem- 
ises to  supply  the  furnace.     And  the  same  rule  was 

[*110]  applied  in  *  the  case  of  salt-works  upon  the  premises, 
where  wood  was  cut  to  carry  on  the  manufacture.'* 

11.  Although  it  is  not  proposed  to  consider  the  rights  of  a 
dowress  to  her  lands  to  any  considerable  extent  here,  it  may 

1  Walker,  Am.  Law,  278 ;  Jackson  v.  Brownson,  7  Johns.  227  ;  Morehouse  v. 
Cotheal,  2  N.  J.  521 ;  Keeler  v.  Eastman,  11  Vt.  293 ;  McCullough  v.  Irvine,  13 
Penn.  St.  438 ;  Hastings  v.  Crunckleton,  3  Yeates,  261 ;  Harder  v.  Harder,  26 
Barb.  414 ;  McGregor  v.  Brown,  10  N.  Y.  118  ;  Proffitt  i;.  Henderson,  29  Mo.  327 ; 
Davis  V.  Gilliam,  5  Ired.  Eq.  311. 

2  Crockett  v.  Crockett,  2  Ohio,  n.  s.  180;  Davis  v.  GiUiam,  sup. 

3  Parkins  v.  Coxe,  2  Hayw.  339  (Martin  &  Hayw.  517) ;  Smith,  Land.  &  Ten. 
192,  n.  Am.  ed. ;  Chase  v.  Hazelton,  7  N.  H.  171 ;  Clemence  v.  Steere,  1  R.  I.  272. 

*  Morehouse  v.  Cotheal,  2  N.  J.  521 ;  Kidd  v.  Dennison,  6  Barb.  9. 
5  Keeler  r.  Eastman,  11  Vt.  293. 

*  Padelford  v.  Padelford,  7  Pick.  162  ;  Babb  v.  Perley,  1  Greenl.  6. 
^  Den  V.  Kinney,  2  South.  652 ;  Findlay  v.  Smith,  6  Munf.  134. 


CH.  V,  §  4.]  ESTATES   FOR   LIFE.  143 

be  observed  that  her  rights  in  the  matter  of  cutting  timber 
are  by  no  means  uniform  in  the  different  States.  At  common 
law  she  could  only  have  estovers,  and  if  she  went  beyond 
that  she  was  liable  to  forfeit  the  premises  wasted.  For  this 
reason  it  was  held  in  Massachusetts,  that  she  could  not  be 
dowable  of  wild  lands,  because  the  very  act  of  clearing  for 
cultivation  would  be  waste  and  work  a  forfeiture.^  But  this 
does  not  extend  to  a  wood-lot  or  other  land  used  with  a  farm 
or  dwelling-house,  although  such  wood-lot  or  other  land  has 
never  been  cleared.^ 

12.  In  other  States  she  is  dowable  of  wild  lands,  and  may 
clear  a  reasonable  proportion  of  the  lands  set  out  to  her,  for 
the  purposes  of  cultivation.^  In  Maine,  waste  does  not  lie 
against  the  tenant  in  dower,  though  an  action  in  the  nature  of 
waste  will.'* 

13.  And  if  the  mode  of  using  the  land  has  consisted  in  cut- 
ting the  growth  upon  it  as  the  customary  source  of  profit,  the 
widow  may  continue  to  do  so.  Thus  to  cut  and  sell  staves  and 
shingles,^  or  hoop-poles,^  under  the  circumstances  above  sup- 
posed, would  not  be  waste. 

14.  Where  the  entire  dower  lands  set  off  to  a  widow  con- 
sist of  different  parcels  of  the  same  original  estate,  but  the 
rights  of  reversion  in  the  different  parcels  are  in  different 
persons,  her  right  of  cutting  upon  any  one  of  them  is  not 
thereby  affected,  if  she  fairly  treat  it  as  one  estate,  and  is  not 
guilty  of  partiality  or  malice  towards  any  one  of  the  rever- 
sioners.'' 

*  15.  If  a  tenant  cut  trees  upon  leased  premises  [*111] 
which  are  excepted  in  his  lease,  he  is  guilty  of  trespass 
but  not  waste  ;  ^  and  if  tenant  carry  away  trees  that  have  been 

1  Conner  v.  Shepherd,  15  Mass.  164.  2  Gen.  Stat.  c.  90,  §  12. 

3  Hastings  v.  Crunckleton,  3  Yeates,  261 ;  Findlay  v.  Smith,  6  Munf.  134 ; 
Alexander  ;;.  Fisher,  7  Ala.  514.  Such  is  the  law  in  New  York  and  Pennsyl- 
vania; 4  Kent,  Com.  76.  And  in  North  Carolina;  Ballentine  v.  Poyner,  2 
Hayw.  110  (Martin  &  Hayw.  268)  ;  Parkins  v.  Coxe,  2  Hayw.  839  (Martin  & 
Hayw.  517).  So  in  Tennessee,  but  not  to  impair  the  estate  ;  Owen  v.  Hyde,  6 
Yerg.  334.  4  Smith  v.  Follansbee,  13  Me.  273. 

5  Ballentine  v.  Poyner,  2  Hayw.  110  (Martin  &  Hayw.  268). 

6  Clemence  v.  Steere,  1  R.  I.  272. 

7  Padelford  v.  Padelford,  7  Pick.  162;  Dalton  v.  Dalton,  7  Ired.  Eq.  197. 

8  1  Cruise,  Dig.  116. 


144  LAW  OF  REAL  PROPERTY.  [bOOK  L 

blown  down,  he  would  be  liable  for  them  in  trover  but  not  in 
waste.  ^ 

16.  Another  species  of  waste  consists  in  opening  gravel  pits 
in  the  land,  and  digging  and  selling  gravel  therefrom,  or  dig- 
ging up  and  selling  the  soil  or  clay,  or  digging  clay  and  making 
it  into  bricks  for  sale  ;  for  a  tenant  for  life  may  neither  dig 
clay  nor  cut  wood  upon  land  for  the  purpose  of  making  bricks 
for  sale. 2 

17.  But  if  digging  and  selling  gravel,  clay,  &c.,  from  pits 
in  the  land  has  been  the  usual  mode  of  improving  the  same, 
it  would  not  be  waste  to  continue  to  do  so  in  pits  already 
opened.^ 

18.  To  open  lands  to  search  for  mines,  unless  mines  are 
expressly  demised  with  the  lands,  would  be  waste  ;  so  it  would 
be  to  open  new  mines,  unless  the  demise  includes  them.*  But 
if  the  mines  are  already  opened  when  the  tenant  takes  the 
estate,  it  is  not  waste  to  continue  to  work  them  even  to  ex- 
haustion. It  is  but  taking  the  accruing  profits  of  the  soil.^ 
Nor  would  it  be  waste  to  open  new  shafts  or  pits  to  follow  the 
same  vein.^  And  this  right  he  may  sell  to  others.  The  persons 
thus  entitled  may  mine  and  sell  the  mineral,  and  for  this  pur- 
pose may  make  new  openings,  build  railroads,  and  suppl}"^  all 
ordinary  facilities  for  carrying  on  the  business.  But  the 
improvements  thus  made  become  the  property  of  the  rever- 
sioner upon  the  termination  of  the  life  estate.'^ 

1  Shult  V.  Barker,  12  S.  &  R.  272. 

2  Huntley  v.  Russell,  13  Q.  B.  691 ;  Taylor,  Land.  &  Ten.  164 ;  Livingston 
V.  Reynolds,  2  Hill,  157  ;  Co.  Lit.  b'6  b  ;  Tud.  Cas.  65. 

3  Huntley  v.  Russell,  13  Q.  B.  591 ;  Knight  v.  Mosely,  Amb.  176 ;  Tud.  Cas.  65 
<  Co.  Lit.  53  b  ;  2  Bl.  Com.  282 ;  Com.  Dig.  "  Waste,"  D.  4  ;  Saunders'  case 

5  Rep.  12 ;  Stoughton  v.  Leigh,  1  Taunt.  410 ;  Darcy  v.  Askwith,   Hob.  234 
Viner  v.  Vaughan,  2  Beav.  466. 

5  2  Bl.  Com.  282 ;  Neel  v.  Neel,  19  Penn.  St.  324 ;  Taylor,  Land.  &  Ten.  165 
Stoughton  V.  Leigh,  1  Taunt.  410. 

6  Clavering  v.  Clavering,  2  P.  Wms.  388;  Findlay  ?;.  Smith,  6  Munf.  134 
Crouch  V.  Puryear,  1  Rand.  258  ;  Billings  v.  Taylor,  10  Pick.  460  ;  Coates  v.  Chee- 
rer,  1  Cow.  460.  There  is  a  tendency  in  the  courts  of  Pennsylvania  to  extend 
the  right  of  lessees  to  open  new  mines  without  subjecting  themselves  to  the  con- 
sequences of  waste,  where  the  lands  leased  are  chiefly  valuable  for  the  minerals 
they  contain.     See  Morris's  note  to  Smith,  Land.  &  Ten.  192,  193. 

7  Irwin  V.  Covode,  24  Penn.  St.  162  ;  Lynn's  Appeal,  31  Penn.  St.  44 ;  Kier 
V.  Peterson,  41  Penn.  St.  361. 


CH.  V.  §  4.]  ESTATES   FOR   LIFE.  145 

19.  The  same  principle  applies  to  salt-works  as  to  minerals. 
If  there  is  an  existing  salt  well  on  the  premises  and  a  manu- 
factory of  salt,  it  would  not  be  waste  to  dig  a  new  salt  well  in 
connection  with  it.^  * 

*20.  Waste  may  be  committed  by  the  manner  in  [*112] 
which  land  is  managed  in  the  way  of  culture.  And 
in  England,  the  early  cases  at  least  adopt  a  very  stringent 
rule,  holding  it  waste  to  change  one  kind  of  land  to  another, 
as  wood  or  meadow  or  pasture  into  arable  land,  and  the  like. 
And  one  ground  upon  which  this  is  held  is,  that  changing  the 
description  of  lands  might  endanger  the  evidence  of  owner- 
ship. ^ 

21.  But  it  is  apprehended  that  the  usages  of  this  country 
are  such,  that  no  such  change  in  the  mode  of  culture  would, 
of  itself,  be  waste.  The  question  would  depend  upon  whether 
it  was  in  conformity  with  the  rules  of  good  husbandry  or  not, 
and  would  injure  the  inheritance.^  Reference  is  often  had  in 
this  kind  of  waste,  as  in  that  by  cutting  timber,  to  the  usages 
of  the  place.*  And  where  it  was  customary  to  sell  the  hay 
from  farms,  it  would  not  be  waste  to  do  so,  though  esteemed 
otherwise  elsewhere. 

22.  But  it  would  be  waste  to  suffer  pastures  to  become  over- 
grown with  brush ,^  or  to  impoverish  fields  by  constant  tillage 

*  Note.  —  The  case  of  Kier  v.  Peterson  presents  a  novel  question  under  the 
application  of  the  principle  of  the  text.  Tlie  defendant  leased  to  the  plaintiff 
the  right  to  bore  salt  wells  in  the  plaintiff's  business,  and  to  manufacture  salt 
thereon  for  an  indefinite  period  of  time,  paying  therefor  every  twelfth  barrel  of 
salt  manufactured.  After  a  while  petroleum  began  to  rise  in  the  wells,  in  con- 
nection with  the  salt  water,  and  being  valuable,  both  parties  claimed  the  right  to 
take  it.  It  was  held  that  the  property  in  the  petroleum  remained  in  the  lessor, 
to  be  accounted  for  by  the  lessee,  if  used  or  appropriated  by  him. 

1  Findlay  v.  Smith,  6  Munf.  134;  Kier  v.  Peterson,  41  Penn.  St.  361. 

2  2  Bl.  Com.  282;  3  Dane,  Abr.  218;  Com.  Dig.  "  Waste,"  D.  4;  Darcy  v. 
Askwith,  Hob.  234  a;  Co.  Lit.  53  b. 

3  3  Dane,  Abr.  219;  Crockett  v.  Crockett,  2  Ohio,  n.  s.  180  ;  Taylor,  Land.  & 
Ten,  170, 171 ;  Clemence  v.  Steere,  1  R.  I.  272 ;  Keeler  v.  Eastman,  11  Vt.  293 ; 
Phillips  V.  Smith,  14  M.  &  W.  594;  McGregor  v.  Brown,  10  N.  Y.  118;  Proffitt 
V.  Henderson,  29  Mo.  327. 

*  Jones  V.  Whitehead,  1  Parsons,  304 ;  Smith,  Land.  &  Ten.  192,  n.  Am.  ed. ; 
Sarles  v.  Sarles,  3  Sand.  Ch.  601.;  Webster  v.  Webster,  33  N.  H.  25. 

6  Clemence  v.  Steere,  1  R.  I.  272. 

VOL.    I.  10 


146  LAW  OF  EEAL  PROPERTY.  [bOOK  I. 

from  year  to  year,^  or  to  remove  the  manure  made  upon  the 
premises  in  "the  ordinary  course  of  husbandry,^  or  to  suffer  a 
bank  to  become  ruinous  whereby  the  water  of  the  sea  or  a  river 
overflows  and  spoils  meadow  ground.^  But  where  in  altering 
the  course  of  a  creek,  which  was  in  itself  an  act  of  good  hus- 
bandry, the  water  had  the  effect  to  destroy  growing  timber, 
which  had  not  been  anticipated,  it  was  held  not  to  be  an  act 
of  waste.* 

23.  In  respect  to  buildings,  waste  may  be  either  voluntary 

or  permissive.  By  the  law,  as  understood  in  England, 
[*113]  *  removing  wainscots,  floors,  or  things  fixed  to  the  free- 
hold in  a  house,  pulling  down  or  unroofing  a  building, 
changing  it  from  one  kind  to  another,  as  a  corn-mill  to  a 
fulling-mill,  a  dwelling-house  into  a  store,  two  chambers  into 
one,  or  e  eonverso,  and  the  like,  would  be  waste  at  the  common 
law.^ 

24.  In  applying  these  rules,  it  has  been  held  that  pulling 
down  a  house  and  building  another  even  upon  a  more  favora- 
ble site  upon  the  same  farm,  would  be  waste,  and,  among  other 
reasons,  because  it  tends  to  destroy  the  evidence  of  identity.® 
Nor  would  it  make  any  difference  that  the  tenant  by  pulling 
down  a  building  and  rebuilding  it  of  a  different  fashion,  makes 
it  more  valuable  than  at  first. '^ 

25.  But  it  is  apprehended  that  a  more  hberal  rule  is  now 
applied  in  respect  to  constructive  acts  of  waste  in  England 
than  formerly,  and  there  certainly  is  a  much  more  liberal  con- 
struction put  upon  such  acts  in  this  country  than  that  of  the 
common  law.  Thus,  the  cutting  a  door  in  a  house,  if  it  did  no 
actual  injury  and  did  not  tend  to  destroy  the  evidence  of  the 
reversioner's  title,  would  not  be  waste. ^  The  proper  test  in 
all  these  cases  seems  to  be,  does  the  act  essentially  injure  the 

1  Sarles  v.  Sarles,  3  Sand.  Ch.  601.  2  Lewis  v.  Jones,  17  Penn.  St.  262. 

8  Com.  Dig.  "  Waste,"  D.  4 ;  Co.  Lit.  53  b. 
*  Jackson  v.  Andrew,  18  Johns.  431. 

5  3  Dane,  Abr.  215 ;  Com.  Dig.  "  Waste,"  D.  3 ;  Taylor,  Land.  &  Ten.  166  ; 
City  of  London  v.  Greyme,  Cro.  Jac.  181 ;  Co.  Lit.  53  a,  n.  344  ;  2  Rolle,  Abr, 
815. 

6  Huntley  v.  Russell,  13  Q.  B.  588. 
T.2Rolle,  Abr.815,  pi.  17,  18. 

8  Young  V.  Spencer,  10  B.  &  C.  145 ;  Jackson  v.  Tibbits,  3  Wend.  341. 


CH.  V.  §  4.]  ESTATES    FOR   LIFE.  147 

inheritance  as  it  will  come  to  the  reversioner  ;  and  this  is  a 
question  for  the  jury.^ 

26.  The  law  seems  to  be  correctly  stated  by  the  chancellor 
in  Winship  v.  Pitts.  "It  is  not  waste  for  the  tenant  to  erect  a 
new  edifice  iipon  the  demised  premises,  provided  it  can  be 
done  wdthout  destroying  or  materially  injuring  the  buildings, 
or  other  improvements  already  existing  thereon.  He  has  no 
right  to  pull  down  valuable  buildings,  or  to  make  improvements 
or  alterations  which  will  materially  or  permanently  change  the 
nature  of  the  property  so  as  to  render  it  impossible 
for  him  to  restore  *  the  same  premises,  substantially,  [*114] 
at  the  expiration  of  the  term.  It  cannot  be  waste 
to  make  new  erections  upon  the  demised  premises  which  may 
be  removed  at  the  end  of  the  term  without  much  inconven- 
ience, leaving  the  property  in  the  same  situation  it  was  at  the 
commencement  of  the  tenancy,  and  the  materials  of  which 
new  buildings,  if  left  on  the  premises,  would  more  than  com- 
pensate the  owner  of  the  reversion  for  the  expenses  of  their 
removal."  ^ 

27.  In  accordance  with  the  principle  thus  laid  down,  vari- 
ous cases  have  been  decided  in  this  country.  Thus,  in  the 
above  case  of  Winship  v.  Pitts,  the  tenant  for  years  of  a 
house  and  lot  in  the  city  of  New  York  erected  a  livery 
stable  upon  it.  In  another,  the  tenant  for  years  tore  down  a 
dilapidated  building,  and  erected  another  of  the  same  size  on 
the  same  foundation,  and  at  the  end  of  the  term  moved  it 
off.3  In  another,  the  tenant  for  life  erected  a  new  smoke- 
house in  place  of  one  gone  to  decay,  from  materials  obtained 
on  the  homestead.*  In  another,  the  tenant  for  life  tore  down 
a  dilapidated  barn  which  was  in  danger  of  falling,  and  it  was 
held  not  to  be  waste .^ 

28.  A  question  is  sometimes  made,  how  far  tenants  will  be 
liable  for  removing  structures  erected  by  themselves,  and  it 
may  be  noticed  here,  although  only  incidentally  affecting  the 

1  Young  V.  Spencer,  10  B.  &  C.  145;  Doe  v.  Burlington,  5  B.  &  Ad.  507; 
Smith,  Land.  &  Ten.  194,  n, ;  Jackson  v.  Andrew,  18  Johns.  431  ;  Hasty  v 
Wheeler,  3  Fairf.  434;  Phillips  v.  Smith,  14  M.  &  W.,  Am.  ed.,  595,  n. ;  Webster 
V.  Webster,  33  N.  H.  25;  McGregor  v.  Brown,  ION.  Y.  118. 

2  Winship  v.  Pitts,  3  Paige,  Ch.  262.  »  Beers  v.  St.  John,  16  Conn.  329. 
*  Sarles  v.  Sarles,  3  Sand.  Ch.  607.              5  Clemence  v.  Steere,  1  R.  I.  272. 


148  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

subject  of  waste.  A  structure  erected  by  tenant  for  years,  of 
whatever  size  or  material  it  may  be,  may  be  removed,  though 
erected  and  used  for  purposes  of  agriculture  or  manufacture. 
And  it  would  seem  that  a  somewhat  different  rule  applies  in 
case  of  tenancies  for  life  from  those  for  years.  In  respect  to 
the  latter  there  seems  to  be  no  restriction,  except  that  such  a 
tenant  may  not  by  such  erection  and  removal  essentially  injure 
the  inheritance,  and  it  must  be  done  during  the  term.^  But 
when  a  house  has  been  erected  by  a  lessee  upon  leased  prem- 
ises, it  becomes  so  far  a  part  of  the  realty  as  to  take  the 
character  of  a  leasehold  term  in  being  a  chattel  real,  M'hich  an 
officer  cannot  levy  upon  as  a  separate  personal  chattel  for  the 
debt  of  the  tenant,  and  remove  the  same.^  /  And  if  tenant  for 
life  remove  a  building  erected  by  him,  bu:t  not  affixed  to  the 
freehold  except  as  merely  standing  upon  it,  it  would 
[*115]  not  be  waste.^  *But  permanent  improvements  an- 
nexed to  the  freehold  become  a  part  of  the  inher- 
itance, and,  if  erected  by  tenant  for  life,  he  may  not  remove 
them.*  And  where  the  husband  of  a  tenant  in  fee  erected  a 
dwelling-house  upon  the  wife's  lands,  it  was  held  that  he 
might  not  remove  it  after  her  death.^  So,  where  a  tenant  at 
will,  without  permission  of  the  lessor,  removed  a  house  on  to 
the  premises,  and  placed  it  on  a  stone  foundation  with  a  cellar 
underneath,  for  a  permanent  dwelling,  it  became  a  part  of 
the  realty,  and  the  tenant  was  not  at  liberty  to  remove  it,  or 
to  convey  it  as  a  personal  chattel  b}''  the  mere  assent  of  the 
owner  of  the  land,  unless  it  had  been  actually  severed  from 
the  land.^  And  the  proposition  is  a  general  one,  that  if  one 
builds  a  house  with  his  own  materials  upon  another's  land, 
without  the  consent  of  the  owner  of  the  land,  it  becomes  the 
property  of  the  latter,  and  thp  builder  cannot  remove  it.'^ 
But  where  a  railroad  company  took  lands  by  eminent  domain, 
and  erected  stone  piers  thereon  for  a  bridge  for  the  railroad,  it 
was  held  that,  upon  the  company  abandoning  the  land,  these 

1  Van  Ness  v.  Pacard,  2  Pet.  137  ;  3  Dane,  Abr.  222  ;  ante,  p.  *8. 

2  Conklin  v.  Foster,  57  III.  104,  108.  3  Clemence  v.  Steere,  1  E.  I.  272. 
*  Austin  V.  Stevens,  24  Me.  520. 

6  Dozier  v.  Gregory,  1  Jones  (N.  C.)  Law,  100;   McCullough  v.  Irvine,   13 
Penn.  St.  438  ;  Washburn  v.  Sproat,  16  Mass.  449  ;  ante,  p.  *3. 

6  Madigan  v.  McCarthy,  108  Mass.  37(3.  ^  Bonney  v.  Foss,  62  Me.  251. 


CH.  V.  §  4.]  ESTATES   FOR   LIFE.  149 

piers   did   not,   as    fixtures,   belong    to    the    owner   of    the 
land.i 

29.  Though  a  tenant  is  clearly  liable  if  he  permits  a  house 
or  fences  on  the  premises  to  go  to  decay,  when  by  the  exer- 
cise of  reasonable  diligence  he  might  prevent  it,  it  is  not  easy 
to  lay  down  rules  a  prio7-i  to  define  when  and  how  far  a  ten- 
ant shall  act  in  all  cases.  Decay  is  often  so  gradual  that  it 
is  difficult  to  determine  when  a  tenant  is  bound  to  repair,  or 
how  far  he  shall  go  in  making  repairs  in  any  given  case.  And 
this  is  especially  so  in  case  of  estates  for  years.  And,  as  a 
general  rule,  whatever  would  be  waste  to  houses  or  fences  in 
England,  would  be  in  this  country .^  If  a  tenant  erect  a  new 
house,  he  is  as  much  bound  to  keep  it  in  repair  as  he  would 
be  a  house  standing  when  he  entered.^ 

30.  A  tenant  from  year  to  year  is  not  held  liable  to  make  good 
the  mere  wear  and  tear  of  the  premises.*  He  is  only  obliged 
to  keep  the  house  wind  and  water  tight.^ 

31.  But  that  does  not  seem  to  be  the  measure  of  what  is 
required  of  a  tenant  for  years  or  for  life.^  In  this  country, 
the  latter  is  bound  to  keep  the  premises  in  repair,  whether 
there  is  such  a  stipulation  in  the  lease  or  not.'^  And  this  he 
must  do  though  there  be  no  timber  upon  the  premises,^  though 
it  is  said  that  in  such  case,  if  tenant  be  in  by  lease,  the  lessor 
must  provide  timber  necessary  for  the  repairs,  if  there  be  no 
fault  in  the  lessee.^  But  while  he  is  bound  to  use  ordinary 
care  to  prevent  buildings  going  to  decay,  he  is  not  bound  to 
expend  extraordinary  sums  for  that  j)urpose.^^ 

*32.  If  a  house  is  uncovered  or  ruinous  when  the  [*116J 
tenant  takes  possession,  he  will  not  be  made  liable  by 
suffering  it  to  remain  so,  though  if  there  is  timber  upon  the 
premises  he  may  use  it  for  rejmiring  the  house. ^^  It  would  be 
a  double  waste  to  let  a  house  go  to  decay,  and  then  cut  timber 
to  repair  it. 

1  Wagner  v.  Cleveland,  &c.  R.  R.,  22  Ohio  St.  563. 

2  3  Dane,  Abr.  214;  Id.  239;  Smith,  Land.  &  Ten.  196. 

8  3  Dane,  Abr.  215.  *  Torriano  v.  Young,  6  Car.  &  P.  8. 

6  Auworth  V.  Johnson,  5  Car.  &  P.  239. 

6  Smith,  Land.  &  Ten.  195.  7  Long  v.  Fitzsimmons,  1  Watts  &  S.  530. 

8  Co.  Lit.  53  a.  9  Com.  Dig.  "  Estate  by  Grant,"  E.  3. 

1"  Wilson  V.  Edmonds,  4  Foster,  517. 
11  3  Dane,  Abr.  221,  222  ;  Co.  Lit.  53,  54  b ;    Clemence  v.  Steere,  1  R.  I.  272 


150  LAW   OF   REAL    PROPERTY.  [BOOK   I. 

33.  In  England,  it  will  be  sufficient  in  respect  to  the  fences, 
if  the  tenant  keep  them  in  as  good  repair  as  he  finds  them  ;  nor 
would  he  be  at  liberty  to  cut  timber  to  build  fences  where 
there  were  none  before,^  though  it  is  apprehended  that  a  dif- 
ferent rule  would  be  applied  here,  making  it  depend  upon  the 
usages  of  the  place  and  the  rules  of  good  husbandry  there. 

34.  Though  a  tenant  is  liable  for  acts  of  waste  done  upon 
the  premises  by  a  stranger,  he  will  not  be  for  what  is  done  by 
the  act  of  God,  public  enemies,  or  the  law.  But  if  a  house 
be  unroofed  by  a  tempest,  the  tenant  may  not  suffer  it  to  re- 
main S0.2  And  where  a  surveyor  of  highways,  under  author- 
ity of  law,  opened  gravel  pits  within  the  demised  premises, 
the  tenant  was  held  not  liable  for  suffering  it  to  be  done.^ 

35.  With  the  above  exceptions,  the  tenant  is  bound  to  pro- 
tect the  premises  from  waste,  even  against  strangers,  or  is  re- 
sponsible to  the  reversioner  for  the  same,  and  may  have  his 
remedy  against  the  wrongdoer.^  But  in  Michigan,  if  a  ten- 
ant for  life  has  conveyed  away  his  estate,  he  will  not  be  liable 
for  any  waste  committed  by  his  grantee,  although  such  ten- 
ant for  life  be  a  tenant  in  dower.^ 

36.  In  England,  they  have  a  statute  (6  Anne,  c.  31),  ex- 
onerating any  person  from  the  consequences  of  a  fire  which 
shall  take  by  accident  in  his  own  house,  unless  he  has  bound 
himself  by  some  express  stipulation.  But  this  does  not  ex- 
tend to  cases  of  fires  caused  by  carelessness  on  the  part  of 
the  tenant  of  such  house.^ 

37.  It  is  said  there  are  no  statutes  upon  the  subject  in  the 

United  States  (except  in  New  York,  in  regard  to  fires 

[*117]  in  woods  *and  fallow  land,  and  one  which  is  the  same 

as  the  statute  of  Anne,  in  New  Jersej^  and  Delaware), 

1  Co.  Lit.  53b  ;  3  Dane,  Abr.  219. 

2  Co.  Lit.  53  a ;  3  Dane,  Abr.  221 ;  Id.  216 ;  Smith,  Land.  &  Ten.  195,  n. ; 
Pollard  V.  Shaffer,  1  Dall.  210. 

3  Huntley  v.  Russell,  13  Q.  B.  591. 

4  Co.  Lit.  54  a ;  Doctor  &  Stud.  112 ;  Fay  v.  Brewer,  3  Pick.  203  ;  3  Dane, 
Abr.  225  ;  Co.  2d  Inst.  145  ;  Wood  v.  Griffin,  46  N.  H.  237,  240;  Cook  ;;.  Cham- 
plain  Trans.  Co.,  1  Denio,  91 ;  Attersol  v.  Stevens,  1  Taunt.  198 ;  Austin  v. 
Hudson  Railroad  Co.,  25  N.  Y.  341.  »  Beers  v.  Beers,  21  Mich.  464. 

6  Filliter  v.  Phippard,  11  Q.  B.  347.  There  was  a  second  statute,  14  Geo.  III. 
c.  78,  §  86,  somewhat  enlarging  that  of  Anne,  extending  it  "  to  stable,  barn,  or 
other  building,  or  on  whose  estate  any  fire,"  &c.,  shall  begin. 


CH.  V.  §  4.]  ESTATES   FOR   LIFE.  151 

tliough  there  are  sundry  cases  where  a  party  who  has  caused 
damage  to  the  property  of  another  by  carelessly  setting  or 
managing  fire  upon  his  own  land,  has  been  held  responsible. 
But  if  the  fire  occurs  without  his  fault,  while  exercising 
reasonable  care  and  diligence,  the  tenant  would  not  be  re- 
sponsible.^  The  statute  of  Anne  has  been  adopted  as  a  part 
of  the  common  law  by  the  courts  of  Wisconsin,  but  not  that 
of  14  Geo.  III.  But  it  is  held  not  to  apply  to  fires  caused 
by  locomotive  engines  while  running  upon  railroads,  the 
estate  of  the  railroad  company.  Nor  are  railroad  companies 
relieved  from  responsibility  for  fires  occasioned  by  negli- 
gence in  operating  their  roads ;  and  if  fires  are  shown  to  have 
been  caused  by  railway  engines  upon  the  road,  the  burden  of 
showing  that  it  was  not  the  result  of  negligence  or  the  want 
of  due  care  and  skill,  is  on  the  railroad  company. ^ 

38.  In  respect  to  the  remedy  which  the  reversioner  has  for 
waste  done  upon  the  premises,  it  has  already  been  stated  that 
the  common  law  provided  an  action  only  in  the  cases  of  dower 
and  curtesy,  and  that  it  was  by  the  statutes  of  Marlbridge 
and  Gloucester  that  the  action  of  waste  was  extended  to 
tenants  for  life  and  years  by  grant  or  demise.^ 

39.  And  it  is  still  competent  for  lessors,  if  they  see  fit,  to 
grant  leases  exempting  tenants  from  responsibility  for  waste, 
or,  as  it  is  commonly  expressed,  "  without  impeachment  of 
waste."  But  unless  a  clause  to  this  effect  is  inserted,  tenants 
for  life  or  years  are  responsible  for  waste  done  or  permitted 
upon  the  demised  premises.^ 

40.  Ajt  common  law  there  were  two  remedies  for  waste,  one 
by  a  WTit  of  prohibition,  where  it  had  been  threatened,  the 
other  by  a  writ  of  waste  for  waste  actually  done,  in  which 

'  Smith,  Land.  &  Ten.,  Am.  ed.,  199,  n. ;  1  Greenl.  Cruise,  133,  n.  ;  Barnard 
V.  Poor,  21  Pick.  378  ;  Maull  v.  Wilson,  2  Harring.  443  ;  Clark  v.  Foot,  8  Johns. 
421 ;  4  Kent,  Com.  82 ;  Rev.  Stat,  of  Delaware,  1852,  c.  88,  §  6  ;  Nixon,  Dig. 
N.  J.  Laws,  1835,  p.  868,  §  8.  But  it  is  now  held,  notwithstanding  the  remarks 
of  Denio,  J.,  in  Althorf  v.  Wolfe,  22  N.  Y.  366,  that  the  statute  of  6  Anne,  c.  31, 
modified  by  that  of  14  Geo.  III.,  c.  78,  has  become  a  part  of  the  common  law 
or  New  York.     Lansing  v.  Stone,  37  Barb.  15. 

2  Spaulding  v.  Chicago,  &c.  R.  R.,  30  Wis.  110.  See,  also,  8  Am.  Law  Rev. 
146. 

8  2  Bl.  Com.  283  ;  Co.  2d  Inst.  299 ;  Chipman  v.  Emeric,  3  Cal.  288. 

4  2  Bl.  Com.  288. 


152  LAW   OP   EEAL   PROPERTY.        -  [BOOK   1. 

the  tenant  was  obliged  to  pay  the  value  of  the  waste,  and  a 
keeper  was  appointed  to  prevent  future  waste.  And  this  ac- 
tion stUl  lay  against  the  original  tenant  in  dower  or  curtesy, 
although  he  or  she  might  have  assigned  over  the  estate. 
Such  action  would  not  lie  against  the  assignee  even  for  waste 
done  after  the  assignment. ^ 

41.  But  no  one  could  maintain  it  but  he  who  had  an  im- 
mediate estate  of  inheritance  upon  the  determination  of  the 
estate  in  dower  or  curtesy  without  any  interposing  vested 

freehold. 2 
[*118J  *42.  By  the  statute  of  Marlbridge,  the  actual  dam- 
ages sustained  by  the  reversioner  were  recovered  in 
an  action  of  w^aste.  That  of  Gloucester  gave  treble  damages, 
and,  in  addition  thereto,  the  reversioner  recovered  the  thing 
wasted,  though  it  was  not  always  easy  to  determine  how  far 
such  forfeiture  extended  and  what  part  of  the  premises  it 
embraced.  Thus,  if  it  were  done  spai-sim,  through  a  wood, 
the  whole  lot  was  forfeit.  So  if  in  several  rooms  in  a  house, 
the  whole  house.  But  if  in  only  a  part  of  the  wood,  or  a 
single  room  in  the  house,  which  was  or  might  easily  be  sepa- 
rated from  the  rest,  that  part  only  of  the  thing  wasted  was 
held  forfeited.^ 

43.  And  if  the  tenant  repairs  what  would  be  held  to  be 
waste  before  the  action  is  commenced,  no  action  can  be  main- 
tained therefor.^ 

44.  The  action  of  waste  depends  upon  privity  between  the 
parties,  so  that  if  the  reversioner  grant  away  his  reversion 
after  waste  done,  no  action  in  this  form  will  lie,  and  the  same 
would  be  the  effect  if  the  reversioner  had  died  and  it  had 
descended  to  his  heirs.  So  if,  after  committing  waste,  the 
tenant  for  life,  died,  no  action  lay  against  his  executors.^ 

45.  In  one  case  a  widow  had  assigned  her  interest  and  the 
reversioner  had  assigned  his.  Her  assignee  committed  waste. 
It  was  held  that  the  assignee  of  the  reversion  could  not  have 


1  Co.  2d  Inst.  300. 

2  Cora.  Dig.  "  Waste,"  C.2  ;  Co.  Lit.  218  b,  n.  122. 

3  Co.  2d  Inst.  299 ;  Id.  303  ;  2  BI.  Com.  283. 

4  Co.  Lit.  53  a  ;  Jackson  v.  Andrew,  18  Johns.  431. 
6  Co.  Lit.  53  b. 


CH.  V.  §  4.]  ESTATES   FOR   LIFE.  153 

waste  or  an  action  on  the  case  in  the  nature  of  waste  against 
her,  because  of  the  want  of  privity  between  them.^ 

46.  But,  in  such  a  case,  the  heir  of  a  reversioner  might  have 
waste,  or  case  in  the  nature  of  waste,  against  her  after  tlie 
assignment  of  her  estate.  So  might  the  assignee  of  the  heir 
of  the  reversioner  against  the  assignee  of  the  life  estate.  In 
the  first  of  these  cases  there  was  a  privity  of  action  at  com- 
mon law ;  in  the  other  there  was  a  privity  of  estate.  But 
between  the  assignee  of  the  reversion  of  the  life 
estate  and  the  tenant  in  *  dower  there  is  no  privity  [*119] 
at  all.     And  the  same  is  true  in  respect  to  tenants 

by  curtesy.^  * 

47.  In  several  of  the  States  the  difficulties  as  to  the  forms 
and  parties  to  the  action  of  waste,  arising  from  the  technical 
rules  of  the  common  law,  have  been  obviated  by  statute,  in 
some  cases  giving  the  heir  of  the  reversioner  an  action  for 
waste  done  in  the  lifetime  of  the  ancestor.^  In  others,  ac- 
tions for  waste  done  survive  against  the  executors,  &c.  of  the 
tenant.* 

48.  And  it  would  seem  that  an  action  upon  the  case  in  the 
nature  of  waste  for  waste  actually  done,  is  a  common-law 
remedy,  which  any  one  having  a  reversionary  interest  may 
maintain  to  recover  the  actual  damages  done,  against  any  one 

*NoTE.  —  This  apparent  solecism  of  creating  a  privity  in  estate  between 
the  grantees  of  two  persons  wlio  had  originally  no  privity  in  estate  between 
themselves,  as  above  stated  between  the  assignee  of  the  heir  of  a  reversioner 
and  the  assignee  of  a  dowress,  is  to  be  ascribed  to  the  statute  of  Gloucester,  and 
is  not  the  creature  of  the  common  law,  "  so  as,"  in  the  words  of  Coke,  "  in  this 
point  our  act  (the  statute  of  Gloucester)  is  introductory  of  a  new  law."  2  Inst. 
301 ;  Park,  Dower,  359 ;  Com.  Dig.  "  Waste,"  c.  4  ;  Co.  Lit.  54  a. 

1  Foot  V.  Dickinson,  2  Met.  611.  "Privity  "  is  defined  to  be  the  mutual  or 
successive  relationship  to  the  same  rights  of  property.    1  Greenl.  Ev.  §§  189,  523. 

'^  Bates  V.  Shraeder,  13  Johns.  260 ;  Walker's  case,  3  Rep.  23 ;  Foot  v.  Dick- 
inson, 2  Met.  611 ;  Co.  2d  Inst.  301. 

■>  Massachusetts,  Gen.  Stat.  1860,  c.  138,  §  2;  Maine,  Rev.  Stat.  1871,  c.  95; 
New  York,  2  Stat,  at  Large,  345;  Wisconsin,  Rev.  Stat.  1858,  c.  143,  §  4;  Michi- 
gan, Comp.  Stat.  1857,  c.  136,  §  4  ;  Iowa, Code,  1873,  p.  533  ;  Missouri,  Wagner, 
Stat.  884 ;  Delaware,  Rev.  Code,  1852,  c.  88,  §  5 ;  New  Jersey,  Nixon's  Dig.  908, 
Kentucky,  Gen.  St.  1873,  p.  609. 

*  Michigan,  Rev.  Stat.  Pt.  3,  Tit.  3,  c.  6,  §  6 ;  Mame,  Rev.  Stat.  1871,  c.  95,  §  4 ; 
Massachusetts,  Gen.  Stat.  1860,  c.  138,  §  6. 


154  L.VW   OF   REAL   PROPERTY.  [bOOK   I. 

who  does  the  injury,  whether  lessee  or  stranger.^  In  Mame, 
a  reversioner  may  have  waste  to  recover  the  place  wasted  and 
damages,  or  case  in  the  nature  of  waste,  and  recover  damages, 
but  not  both.2 

49.  Though,  as  has  been  seen,  the  interposition  of  a  free- 
hold in  remainder  between  the  estate  of  the  tenant  commit- 
ting waste,  and  the  remainder  or  reversion  in  fee,  would  pre- 
vent the  owner  of  the  latter  from  maintaining  waste  as  the 
law  stood,  yet  he  is  not  without  right  or  remedy  in  respect 
to  timber  cut  upon  the  premises.  The  property  in  that  is 
considered  as  being  in  him,  and  he  may  seize  it,  or  bring 
trover  for  its  conversion,  or  replevy  it,  or  bring  trespass  de 
bonis  for  the  taking  of  it.  Nor  does  it  matter  whether  the 
timber  is  cut  by  a  stranger  or  by  the  tenant  himself,  since 
the  tenant  cannot  convey  any  interest  in  it  when  severed.^ 
If  a  tenant  for  life  cut  timber  and  sell  it,  he  is  thereby  a 
wrongdoer,  and  cannot  claim  the  interest  upon  such  sale,  on 
the  ground  that  it  was  a  part  of  the  income  of  the  estate. 
The  reversioner  in  such  case  may  have  trover  for  the  conver- 
sion of  the  timber,  or  an  action  for  money  had  and  received, 
if  the  tenant  shall  have  sold  it,  which  action  must  be  brought 
within  six  years,  or  be  barred  by  the  Statute  of  Limitations.* 
But  if  the  trees  are  cut  by  a  stranger,  both  the  tenant  and 
reversioner  may  have  actions  therefor,  —  trespass  by  the  ten- 
ant, and  case  by  the  reversioner.  The  trees,  however,  when 
severed  from  the  freehold,  become  the  absolute  and  sole  prop- 
erty of  the  reversioner,  and  trespass  will  lie  in  his  favor 
against  any  one  who  removes  them,  even  though  it  be  the 
tenant  himself,  as  the  property  in  chattels  carries  with  it 
possession  as  against  a  wrongdoer.^  Nor  would  the  tenant 
for  life  have  any  better  rights  in  this  respect,  though  the 

1  Chase  v.  Hazelton,  7  N.  H.  175,  176.  In  Iowa,  owner  of  land  may  have 
trespass  for  acts  of  permanent  injury  done  to  it  while  in  possession  of  a  tenant, 
the  statute  having  done  away  the  distinction  between  trespass  and  case.  Brown 
V.  Bridges,  30  Iowa,  145. 

2  Stetson  V.  Day,  51  Me.  434. 

3  Lewis  Bowles's  case,  11  Rep.  82 ;  Berry  w.  Heard,  Cro.  Car.  242;  Richard- 
son V.  York,  14  Me.  216  ;  Bulkley  v.  Dolbeare,  7  Conn.  232 ;  Mooers  v.  Wait,  3 
Wend.  104. 

4  Seagram  v.  Knight,  L.  R.  2  Ch.  App.  631 ;  Jones  v.  Hoar,  5  Pick.  285. 

5  Lane  v.  Thompson,  43  N.  H.  324. 


CH.  Y.  §  4.]  ESTATES   FOR   LIFE.  155 

trees  cut  had  grown  upon  what  was  pasture-land  when  he 
took  possession,  or  the  natural  growth  of  wood  upon  the 
land,  before  the  determination  of  the  life  estate,  would  be- 
come equal  in  value  to  the  trees  which  he  had  cut.  Nor 
could  he  set  off  against  the  reversioner's  claim  for  damages, 
what  he  had  paid  to  procure  firewood  from  the  same.^  This 
principle  applies  not  only  to  the  timber  cut,  but  to  materials 
of  buildings  severed  from  the  inheritance,  and  the  produce 
of  mines  wrongfully  severed.^ 

*50.  But  if  tenant  for  life  has  the  next  existing  [*120J 
estate  of  inheritance,  subject  to  intermediate  contin- 
gent remainders  in  tail,  a  court  of  chancery  would  restrain  his 
cutting  timber,  otherwise  he  would  have  an  inducement  to 
cut  to  the  injury  of  the  remainder-man,  as  he  would  be  en- 
titled to  the  timber,  his  being  the  only  existing  estate  of 
inheritance.^  No  one,  however,  whose  interest  is  that  of  a 
contingent  remainder,  or  executory  devise,  can  maintain  an 
action  at  law  against  a  tenant  for  life,  for  committing  waste 
upon  the  premises.^ 

51.  As  has  been  stated  above,  leases  are  sometimes  made 
with  provisions  exempting  the  tenant  from  impeachment  for 
waste.  Such  tenant,  whether  for  life  or  years,  may  open  new 
mines,  fell  timber,  and  claim  as  his  own  that  which  has  been 
blown  down,  though  he  has  no  property  in  the  timber  while 
standing,  nor  can  he  sell  it  to  another  to  cut  after  his  death, 
nor  delegate  any  right  to  a  third  party  to  do  so.  But  if  he 
underlets,  his  tenant  will  have  the  same  exemption  as  him- 
self.^ But  such  a  tenant  is  not  at  liberty  to  commit  wilful 
and  malicious  waste,  and  courts  of  chancery  will  interpose, 
by  injunction,  to  restrain  its  commission,  or  compel  him  to 
repair  the  waste,  if  actually  committed.^     The   custom  of 

1  Phillips  V.  Allen,  7  Allen,  116  ;  Clark  v.  Holden,  7  Gray,  11. 

2  Tud.  Cas.  67  ;  Uvedall  v.  Uvedall,  2  RoUe,  Abr.  119,  pt.  3. 
8  Williams  v.  Bolton,  3  P.  Wms.  268,  n. 

4  Hunt  V.  Hall,  37  Maine,  363,  366. 

5  2  Bl.  Com.  283,  n.  ;  Pyne  v.  Dor,  1  T.  R.  56 ;  Cholmeley  v.  Paxton,  2  Bing. 
207 ;  1  Cruise,  Dig.  128  ;  Tud.  Cas.  67  ;  Lewis  Bowles's  case,  11  Rep.  83. 

6  Marker  v.  Marker,  4  Eng.  L.  &  Eq.  95.  This  was  done  in  the  case  of  Lord 
Barnard,  tenant  of  Kaby  Castle,  who,  from  dislike  of  his  son,  the  reversioner, 
stripped  the  castle  of  its  iron,  lead,  doors,  &c.  Vane  v.  Lord  Barnard,  2  Vern. 
788. 


156  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

leasing  in  this  way  does  not  seem  to  have  obtained  in  this 
country.^ 

52.  Among  the  persons  who  are  liable  for  waste  committed 
on  lands  in  their  occupation,  are  parsons  in  respect  to  glebe 
lands,  whether  settled  for  life  or  years.^ 

53.  The  courts  of  the  various  States  have  held  differently 
in  respect  to  the  extent  to  which  the  common  law  as  to  waste, 
or  the  statutes  of  Marlbridge  and  Gloucester,  have  been 
adopted  in  the  different  States.  The  tendency,  of  late,  has 
been,  both  in  England  and  this  country,  to  do  away  with  the 
severe  remedies  provided  in  the  latter  statute,  and  to  substi- 
tute either  a  process  in  equity  for  restraining  the  com- 

[*121]  mission  of  waste,  or  an  action  *  on  the  case  in  which 
the  actual  damages  done  to  the  inheritance  may  be  re- 
covered by  the  reversioner.  Such  now  is  the  case  by  statute 
in  England,  where  the  action  of  waste  is  abolished  by  3  &  4 
Wm.  IV.  c.  27,  §  36.  And  the  action  in  this  country  has 
gone  very  much  into  disuse  in  the  States  where  it  is  recog- 
nized by  the  law.^ 

54.  Sullivan,  in  his  treatise  on  land  titles  in  Massachusetts, 
states  that  in  the  course  of  thirty  j-ears'  practice  he  had  never 
known  an  action  of  waste  in  that  State  to  enforce  a  forfeiture 
of  lands,  though  he  had  known  actions  to  recover  for  the 
damage  actually  done.^  Previous  to  the  act  of  1783  there 
was  no  statute  in  that  State  which  declared  the  estate  of  a 
widow  forfeited  for  waste.  By  that  statute  such  a  forfeiture 
is  provided  for,  but  no  mention  is  made  of  treble  damages. 
It  was,  however,  held  that,  except  so  far  as  modified  by  the 
statute  of  the  State,  the  statutes  of  Marlbridge  and  Gloucester 
were  a  part  of  the  common  law  of  Massachusetts.  And  the 
Gen.  Stat.  c.  138,  §  1,  provides  for  a  forfeiture  of  the  place 
wasted,  and  actual  damages  in  actions  of  waste  against  ten- 
ants by  curtesy,  dower,  for  life,  or  for  years.^ 

1  4  Kent,  Com.  78,  n. 

2  Cargill  V.  Sewall,  19  Me.  288.  See  also  Huntley  v.  Russell,  13  Q.  B.  588; 
Tud.  Cas.  65 ;  1  Cruise,  Dig.  131. 

3  Smith,  Land.  &  Ten.  197,  n ;  Greene  v.  Cole,  2  Saund.  252,  n.  7  ;  McCullough 
V.  Irvine,  13  Penn.  St.  438 ;  4  Kent,  Com.  81 ;  Wms.  Real  Prop.  24. 

4  3  Dane,  Abr.  228. 

6  Sackett  v.  Sackett,  8  Pick.  309 ;  Stat.  1783,  c.  40,  §  3  ;  2  Am.  Jur.  76. 


CH.  V.  §  4.]  ESTATES    FOR   LIFE.  157 

55.  And  Judge  Kent  is  inclined  to  believe  that  the  action 
of  waste,  either  at  common  law  or  founded  upon  the  statute 
of  Gloucester,  has  been  generally  received  in  the  country  as 
applicable  to  all  kinds  of  tenants  for  life  or  years. ^ 

56.  Connecticut  seems  to  have  been  an  exception  to  the 
above  proposition,  since  it  is  there  held  that  tenants  for  life, 
except  tenants  in  dower  or  by  curtesy,  are  not  impeachable 
for  waste,  though  a  reversioner  may  have  an  action  on  the 
case  in  the  nature  of  M'aste  for  an  injury  to  the  reversionary 
interest  while  in  the  possession  of  a  tenant.^ 

57.  In  Maine  it  is  held,  that  the  statute  of  Gloucester  never 
was  a  part  of  the  common  law  of  the  State  in  respect 

to  tenants  *  in  dower,  and  an  action  of  waste  against  [*122] 
such  tenant  cannot  be  sustained  there,  though  an  ac- 
tion on  the  case  in  the  nature  of  waste  may  be,  unless  it  be 
for  permissive  waste.^  And  in  Georgia,  the  law  as  to  liability 
of  dowress  and  the  statute  of  Gloucester  as  affecting  dower 
lands,  is  the  same  as  in  Maine.^  * 

*  Note.  —  The  following  are  believed  to  be  substantially  the  present  statute 
laws  of  the  States  enumerated,  relating  to  waste  committed  by  tenants  for  life,  in 
dower  and  by  curtesy,  namely  :  —  Massachusetts.  If  tenant  in  dower  or  by  cur- 
tesy, for  life  or  years,  commit  or  suffer  waste,  the  person  having  the  next  imme- 
diate estate  of  inheritance  may  have  waste  against  the  tenant,  and  recover  the 
place  wasted  and  the  damages.  Tlie  heir  may  sue  for  waste  done  in  the  time  of 
the  ancestor.  The  party  injured  may  have  an  action  of  tort  in  the  nature  of 
waste  to  recover  the  damages,  and  the  remainder-man  or  reversioner  maj'  main- 
tain it  though  there  be  an  intervening  estate  for  life,  or  though  the  remainder 
or  reversion  be  for  life  or  years,  and  the  action  may  be  prosecuted  against  the  ex- 
ecutors or  administrators  of  the  tenant,  for  waste  committed  by  him.  Mass.  Gen. 
Stat.  1860,  c.  138,  §§  1-6.  —  Maine.  The  law  is  the  same  as  in  Massachusetts  as 
to  maintaining  the  action  of  waste  against  the  tenant,  and  recovering  the  place 
wasted  and  damages,  and  also  an  action  on  the  case  in  the  nature  of  waste,  by  one 
having  a  reversion  with  an  intermediate  estate,  or  a  reversion  for  life  or  years. 
Rev.  Stat.  1871,  c.  95,  §§  1,  2,  3.  —  Neio  York.  If  guardian,  tenant  by  curtesy, 
in  dower,  for  life  or  years,  or  the  assigns  of  such  tenant,  commit  waste,  the  rever- 
sioner may  recover  the  place  wasted  and  treble  damages.  2  Stat,  at  Large,  345, 
346.    And  in  this  respect  the  statute  of  New  Jersey  is  the  same.    Nixon's  Dig. 

1  4  Kent,  Com.  79. 

2  Moore  v.  Ellsworth,  3  Conn.  483  ;  Randall  v.  Cleaveland,  6  Conn.  328. 

'  Smith  V.  Follansbee,  13  Me.  273.  But  it  is  assumed  by  Parris,  J.,  in  Hasty  v. 
Wheeler,  12  Me.  438,  that  if  an  ordinary  tenant  for  life  or  years  commits  waste, 
he  forfeits  the  place  wasted  and  treble  damages. 

4  Parker  v.  Chambliss,  12  Ga.  235 ;  Woodward  v.  Gates,  38  Ga,  205. 


158  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

[*123]       *58.  But  from  the  fact  that  the  action  is  so  seldom 
brought,  it  is  hardly  worth  while  to  occupy  any  more 

1861,  p.  908.  —  North  Carolina.  Has  abolished  tlie  action  of  waste,  but  for  what 
would  be  waste,  a  judgment  is  rendered  for  damages,  and  if  the  injury  to  the 
estate  in  reversion  shall  be  adjudged  equal  to  the  value  of  the  tenant's  estate  or 
unexpired  term,  or  if  it  shall  be  done  in  malice,  the  plaintiff  shall  have  a  judgment 
of  forfeiture  and  eviction.  Gen.  Stat.  1873,  p.  239.  —  Delaware.  Tenants  by  cur- 
tesy, &c.  are  liable  to  actions  for  waste  in  which  the  plaintiff  may  recover  the  place 
wasted  and  double  damages.  Laws,  1874,  p.  537.  —  Missouri.  If  tenant  for  life 
^  or  j'ears  commit  waste,  he  is  subject  to  an  action  to  lose  the  thing  wasted  and  to 
pay  double  the  damages  assessed,  and  is  still  liable  in  damages  if  he  is  in  posses- 
sion, though  he  may  have  aliened  the  premises.  Wagner's  Stat.  1870,  p.  884.  — 
Virginia.  If  tenant,  &c.  commit  waste,  he  is  liable  to  any  person  injured,  in 
damages  ;  and  if  wantonly  done,  he  is  liable  to  three  times  the  amount  assessed  as 
damages.  Code,  1860,  p.  616.  — Kentucky.  The  law  is  like  that  of  Missouri,  and 
reversioner  in  fee  may  sue,  though  there  be  an  intervening  estate  for  life  or  years. 
Gen.  Stat.  1873,  p.  607.  —  Kansas.  The  action  of  waste  is  abolished,  and  wrongs 
which  were  remediable  by  actions  of  waste  are  subjects  of  action  as  other  wrongs. 
Gen.  Stat.  1868,  p.  76-5.  —  And  in  New  York,  if  the  tenant  above  mentioned  let  or 
grant  his  estate,  and  still  retain  possession  of  the  same  and  commit  waste,  the 
reversioner  may  maintain  his  action  of  waste  against  such  tenant.  2  Stat,  at  Large, 
845,  346.  And  in  this  respect  the  law  is  the  same  in  Michigan.  Comp.  Law, 
1857,  c.  136,  §  2;  Wisconsin,  Rev.  Stat.  1858,  c.  143,  §  2;  Delaware,  Laws, 
1874,  p.  537;  New  Jersey,  Nixon's  Dig.  1861,  p.  908.  —  In  Connert/ra^,  it  has  been 
decided  in  Moore  v.  Ellsworth  (3  Conn.  483),  in  conformity  with  the  common  law 
before  the  statute  of  Marlbridge,  that  tenants  for  life  other  than  tenants  in  dower 
and  by  curtesy,  were  not  Hable  for  waste.  By  statute  (Gen.  Stat.  1875,  p.  490), 
every  person  having  no  greater  estate  in  lands  tlian  for  years  or  life,  created  by 
the  act  of  the  parties,  and  not  by  act  of  law,  who  shall  commit  waste,  is  made 
liable  to  the  party  injured  in  an  action  on  the  case.  The  law  of  Minnesota  is  the 
same  as  to  such  tenants,  tenants  in  dower  and  by  curtesy,  except  that  judgment 
for  forfeiture  and  eviction  and  treble  damages  will  only  be  rendered  where  the  in- 
jury to  the  reversion  is  adjudged  in  the  action  to  be  equal  to  the  value  of  the  ten- 
ant's estate,  or  unexpired  term,  or  to  have  been  done  in  malice.  Eev.  Stat.  1866,  p. 
862.  So  in  Oregon,  Code,  1862,  §  834.  —  In  Indiana,  the  action  of  waste  is  abolished, 
but  the  law  is  the  same  as  to  recovery  for  waste  done  as  in  Minnesota,  except 
that  only  the  actual  damages  are  recovered.  G.  &  H.  Stat  v.  2,  p.  286.  —  In  Iowa, 
the  action  may  be  brought  by  the  reversioner,  who  may  have  an  action  of  waste 
notwithstanding  an  intermediate  estate  for  Ufe  or  years,  except  that  he  recovers 
three  times  the  damages  and  a  judgment  of  forfeiture  and  eviction,  if  the  dam- 
ages are  equal  to  two-tliirds  of  the  defendant's  interest.  Code,  1873,  p.  533.  So 
in  Dakotah,  Laws,  1862,  p.  149.  —  In  Rhode  Island,  tenant  for  life  committing  or 
suffering  waste,  forfeits  the  place  wasted  and  double  damages  to  the  person 
entitled  to  the  next  estate  in  remainder  or  reversion.  Gen.  Stat.  1872,  p.  524.  —  In 
New  Hampshire,  tenants  in  dower  are  made  liable  in  damages  for  waste,  without 
any  provision  by  statute  for  otiier  tenants  or  forfeiture.  Gen.  Stat.  1867,  c.  183, 
§  6.  The  court  in  Chase  v.  Hazelton,  7  N.  H.  175,  waive  the  point  whether  the 
statutes  of  Marlbridge  and  Gloucester  have  been  adopted  as  a  part  of  the  common 
law  of  New  Hampshire.     But  they  hold  that  actions  on  the  case  in  the  nature  of 


CH.  V.  §  4.]  ESTATES    FOR   LIFE.  159 

space  in  discussing  *  the  subject,  and  it  is  only  ne-   [*124] 
cessary  to  refer  the  reader  to  the  case  of  Greene  v. 
Cole,  and  the  notes  thereon  in  Saunders's  Reports,  in  which 
he  will  find  the  subject  of  actions  on   the  case  in  the  natm-e 

waste,  lie  in  all  cases  where  the  reversionary  interest  of  the  plaintiif  is  injured  by 
acts  of  waste,  whether  by  tenant  or  stranger.  —  Nebrnsl-a.  Widows  are  liable  to 
the  next  of  inheritance  for  all  damages  occasioned  by  waste  committed  or  suffered 
by  her.  Gen.  Stat.  1873.  —  The  statute  law  of  Vermont  is  like  that  of  New  Hamp- 
shire. Gen.  Stat.  1863,  c.  55,  §  13.  So  is  that  of  Mississippi  Rev.  Code,  1871, 
p.  255.  So  is  the  law  of  Illinois,  except  that  there  is  a  forfeiture  of  the  place  as 
well  as  a  judgment  for  damages.  Rev.  Stat.  1874,  p.  428.  —  In  Ohio,  though  a 
tenant  for  life  is  liable  for  waste,  the  action  of  waste  is  abolished,  and  no  one  for- 
feits the  place  wasted  in  an  action  for  the  waste  done,  except  tenant  in  dower  ;  if 
she  commit  waste,  she  forfeits  the  place  wasted  to  the  immediate  remainder-man 
or  reversioner.  Walker,  Am.  Law,  277,  326,  829;  1  S.  &  C.  Rev.  Stat.  1869,  p. 
521.  —  In  Michigan,  the  action  is  always  on  the  case,  and  judgment  may  be  had 
for  double  damages  against  tenants  by  curtesy,  in  dower,  for  life  and  years. 
Comp.  Law,  1857,  c.  136,  §§  1,5.  And  the  law  in  FF«sconsm  is  the  same.  Rev. 
Stat.  1858,  c.  148.  And  any  one  who  has  the  reversion  or  remainder  in  fee  or 
in  tail,  after  an  intervening  estate  for  life,  as  well  as  remainder-man  or  reversioner 
for  life  or  years,  may  have  an  action  on  the  case  in  the  nature  of  waste  against 
tenant  committing  waste.  Rev.  Stat.  1855,  c.  94,  §  43.  —  In  Kentucky,  an  action 
of  waste  may  be  maintained  by  any  one  who  has  the  remainder  or  reversion  in 
fee-simple  after  an  intervening  estate  for  life  or  years  ;  and  also  by  one  who  has 
a  remainder  or  reversion  for  Ufe  or  years  only,  each  recovering  such  damage  as 
it  shall  appear  he  has  sustained.  Any  person  who  may  have  waste  may  liave  an 
action  on  the  case  in  the  nature  of  waste  to  recover  actual  damages,  or  treble 
damages  if  the  injury  be  wantonly  committed.  Gen.  Stat.  1873,  p.  607,  §  3.  —  In 
California,  the  tenant  who  commits  waste  forfeits  treble  damages,  but  not  the 
place  wasted.     Comp.  Stat.  1853,  p.  566  ;  Chipman  v.  Emeric,  3  Cal.  283. 

Perhaps  no  more  proper  place  may  offer  for  noticing  provisions  for  preventing 
waste  in  special  cases,  other  than  tenancies  for  life  or  years. — In  Kentucky,  a 
guardian  is  liable  to  his  ward  for  waste.  Gen.  Stat.  1873,  p.  607.  —  In  New  York, 
if  one  commits  acts  of  waste  upon  lands  sold  on  execution,  while  the  same  are  yet 
subject  to  redemption,  he  will  be  liable  to  an  action  of  waste  ;  and  the  law  is  sub- 
stantially the  same  in  Wisconsin.  N.  Y.,  2  Stat,  at  Large,  p.  347  ;  Minn.  Stat. 
1866,  p.  492;  Wis.  Rev.  Stat.  1858,  c.  143,  §  8.— In  Maine  and  Massachusetts,  if 
a  tenant  commit  waste  on  lands  during  an  action  to  recover  the  same,  the  party 
aggrieved  may  recover  three  times  the  amount  of  damages.  Maine,  Rev.  Stat. 
1857,  c.  95,  §  8  ;  Mass.  Gen.  Stat.  1860,  c.  138,  §  9.  —  Minnesota.  K  one  commit 
waste  on  land  sold  on  execution,  while  subject  to  redemption,  the  court  will  re- 
strain it.  Rev.  Stat.  1866,  p.  492.  —  In  Delaware,  there  may  be  a  writ  ofestrepe- 
ment,  or  injunction  to  prevent  waste,  pending  an  action  of  ejectment,  or  an  action 
of  waste.  Rev.  Code,  1852,  c.  88,  §  10.  —  In  Rhode  Island,  there  may  be  a  writ 
of  estrepement  to  stay  waste.  Gen.  Stat.  1872,  p.  524.  —  So  in  Pennsylvania. 
Brightly's  Purd.  Dig.  1466.  —  In  other  States  there  may  be  an  injunction  for  that 
purpose  :  as  in  Maine,  Gen.  Stat.  1871,  p.  732;  Massachusetts,  Geri.  Stat.  1860, 
c.  138,  §  15;  New  Hampshire,  Gen.  Stat.  1867,  c.  190,  §  1. 


160  LAW   OF  REAL   PROPERTY.  [bOOK   I. 

of  waste  fully  explained,  as  well  as  the  cases  in  which  they 
will  lie.  Among  other  things,  it  will  be  found  that  such  an 
action  may  be  brought  by  him  in  reversion  for  life  or  years, 
as  well  as  m  fee,  and  may  be  maintained  for  permissive  as  well 
as  voluntary  waste. ^  So  it  may  be  brought  against  a  tenant 
for  years  for  permissive  waste  done  upon  the  demised  prem- 

ises.2 
[*125]       *o9.  In  the  present  state  of  the  law,  however,  the 

most  usual  remedy  resorted  to  by  a  reversioner  against 
a  tenant  for  life  or  j'ears  in  respect  to  waste,  is  by  application 
to  chancery  to  obtain  an  injunction  restraining  him  from  com- 
mitting it.  This  power  is  incident  to  courts  of  chancery,  and 
is  conferred  by  statute  upon  other  courts  in  some  cases.  It 
may  be  applied  in  many  cases  where  the  party  seeking  relief 
could  not  sustain  an  action  of  waste,  as  where  an  estate  for 
life  intervenes  between  the  estate  of  the  tenant  and  that  of 
the  estate  of  inheritance,  in  favor  of  the  intermediate  remain- 
der-man as  well  as  the  remainder-man  in  fee.^  And  this 
remedy  may  be  applied,  although  another  is  provided  by 
statute.*  So  it  may  often  be  applied  where  tenants  hold 
without  impeachment  of  waste,  if  they  exercise  this  power  in 
an  unreasonable  and  unconscionable  manner.^ 

60.  Nor  will  this  remedy  be  granted  except  in  cases  of 
technical  waste.  It  will  not  be  in  cases  of  mere  trespass,  and 
it  must  moreover  be  for  an  injury  which  will  be  irreparable, 
and  not  to  be   compensated  in  damages.^      But  it  will  be 

1  2  Saund.  252,  and  n.  7.  Though  it  is  said  in  broad  terms,  in  the  following 
cases,  that  case  for  waste  will  not  lie  for  permissive  waste.  Countess  of  Shrews- 
bury's case,  5  Rep.  13  j  Heme  v.  Bembow,  4  Taunt.  764 ;  Gibson  v.  Wells,  1  B. 
&  P.  N.  R.  390. 

2  Moore  v.  Townshend,  4  Vroom,  284. 

3  Jones  V.  Hill,  1  Moore,  100 ;  Laussat's  Fonbl.  Eq.  3,  n.  ;  Id.  52,  n. ;  Tracy 
V.  Tracy,  1  Vern.  23 ;  Mollineaux  v.  Powell,  3  P.  Wms.  268,  n.  F. ;  Kane  v. 
Vanderburgh,  1  Johns.  Ch.  11 ;  Story,  Eq.  Jur.  §  918.  But  held,  that  remainder- 
man for  life  could  not  have  a  bill  to  enjoin  the  tenant  of  the  previous  estate. 
Mayo  V.  Feaster,  2  McC.  Ch.  137. 

*  Harris  v.  Thomas,  1  Hen.  &  M.  18.  Contra,  Cutting  v.  Carter,  4  Hen.  &  M. 
424 ;  Poindexter  v.  Henderson,  Walker,  176. 

5  Kane  v.  Vanderburgh,  1  Johns.  Ch.  11 ;  2  Bl.  Com.  283 ;  Tud.  Cas.  68,  69. 

6  Attaquin  v.  Fish,  5  Met.  140;  Atkins  v.  Chilson,  7  Met.  398;  Poindexter  v. 
Henderson,  Walker,  176 ;  Leighton  v.  Leighton,  32  Me.  399. 


CH.  V.  §  4.]  ESTATES   FOR  LIFE.  161 

granted  if  material  waste  is  threatened,  though  the  injury 
actually  done  be  trifling.^ 

61.  In  one  case  the  court  lay  down  the  following  rule  as  to 
cases  where  courts  of  equity  will  interpose  to  prevent  injuries 
to  real  estate,  —  one  which  seems  to  be  in  conformity  with 
the  principles  acted  upon  by  courts  in  other  States.  If  there 
is  a  privity  of  estate  between  the  party  applying  for 

the  injunction  *  and  him  who  is  doing  or  about  to  do  [*126] 
the  act,  such  as  exists  between  tenant  for  life  or  years 
and  the  reversioner,  it  is  not  necessary  that  the  act  should 
work  irreparable  injury  to  induce  the  court  to  grant  it.  But 
if  the  parties  are  strangers  in  respect  to  the  estate,  or  are 
claimants  adverse  to  each  other,  the  court  will  require  evidence 
that  the  injury  threatened  will  be  irreparable,  before  they  will 
interpose  to  restrain  it  by  injunction.  And  this,  whether  the 
act  threatened  be  waste  or  trespass.^  Nor  will  an  injunction 
to  stay  waste  be  granted  where  the  right  is  doubtful.^ 

62.  It  seems,  that  upon  a  bill  for  an  injunction  to  stay 
waste,  where  waste  has  already  been  done,  it  is  competent  for 
a  court  of  equity  to  require  an  account  of  the  waste  to  be 
taken,  and  to  give  the  party  a  compensation  for  the  damages 
in  order  to  avoid  a  multiplicity  of  actions,  although  the  plain- 
tiff may  have  a  remedy  therefor  by  an  action  at  the  common 
law.4 

63.  Courts  of  equity  in  England  often  authorize  tenants  to 
cut  timber  which  would  be  injured  by  standing,  and  invest  the 
proceeds  for  the  benefit  of  those  entitled  to  it.® 

64.  And  in  England,  by  statute  8  &  9  Vict.  c.  56,  provision 
is  made  for  improving  lands  held  by  tenants  by  draining  and 
the  like,  through  the  agency  of  the  court  of  chancery.^ 

1  Livingston  v.  Reynolds,  26  Wend.  115 ;  London  v.  Warfield,  5  J.  J.  Marsh. 
196;  Rodgers  v.  Rodgers,  11  Barb.  595  ;  White  Water  Canal  v.  Comegys,  2  Ind. 
469. 

2  Georges  Creek  Co.  v.  Detmold,  1  Md.  Ch.  Dec.  371.  See  Atkins  v.  Chilson, 
7  Met.  398;  Poindexter  v.  Henderson,  Walker,  176. 

3  Storm  V.  Mann,  4  Jolins.  Cli.  21 ;  Field  v.  Jackson,  2  Dick.  599. 

*  Story,  Eq.  Jur.  §§  617,  518;  Id.  §  917;  Tud.  Cas.  68;  Watson  v.  Hunter,  5 
Jolins.  Ch.  170,  171. 

5  Story,  Eq.  Jur.  §  919.  And  a  similar  power  is  delegated  to  courts  in  Mas- 
sachusetts and  Maine.     Gen.  Stat,  c  90,  §§  39-43 ;  Rev.  St.  1871,  p.  784. 

B  Wms.  Real  Prop.  27. 

VOL.    I.  11 


162 


LAW   OF   REAL   PROPERTY. 


[book  I. 


CHAPTER   VI. 

ESTATES  BY  CURTESY. 

1.  Estate  defined. 

2.  Curtesy  by  equity. 

3.  Origin  of  the  estate. 

4.  Curtesy  now  generally  disused. 

5.  Curtesy  in  the  United  States. 
6,  7.  Requisites  to  give  curtesy. 

8.  Wliat  is  sufficient  seisin. 

9, 10.  Curtesy  in  equitable  estates,  and  money. 

11-13.  Curtesy  in  determinable  fees. 

14, 15.  Curtesy  in  equitable  estates  settled  on  wife. 

16-18.  Curtesy  where  there  is  a  rerersion  after  determination  of  wife's 

estate. 

19-21.  Curtesy  of  determinable  estates  with  remainder. 

22.  Curtesy  in  case  of  joint  tenancy, 

23.  Curtesy  a  continuation  of  wife's  estate. 
24-30.  What  seisin  of  wife  requisite. 

31.  Possession  of  co-tenant  sufficient. 

32.  Possession  of  wife's  tenant  for  years. 
33-36.  Curtesy  in  wife's  reversion,  in  what  cases. 
37,  38.  Curtesy  in  what  lies  in  grant. 

39-41.  Seisin  by  trustee  does  not  give  curtesy. 

41  a.  Effect  of  conveyance  by  wife  before  marriage. 

42, 43.  Merger  of  reversion  and  life-estate,  wliere  it  gives  curtesy. 

44-46.  Birth  of  living  child  requisite. 

47.  Curtesy  initiate  and  consummate. 

48-50.  Nature  of  the  estate. 

51.  Curtesy  subject  to  debts  of  the  tenant. 

52.  Effect  of  alienage. 

53,54.  How  curtesy  may  be  forfeited. 

55.  Curtesy  subject  to  same  duties,  &c.,  as  estates  for  life. 

56.  No  preliminary  act  in  obtaining  it. 


1.  An  estate  by  the  curtesy,  or,  as  it  is  more  commonly 
called,  by  curtesy,  is  that  to  which  a  husband  is  entitled,  upon 

the  death  of  the  wife,  in  the  lalids  or  tenements  of 
[*128]   which  she  was  *  seised  in  possession,  in  fee  simple 

or  in  tail,  during  their  coverture,  provided  they  have 
had  lawful  issue  born  alive,  which  might  have  been  capable  of 


CH.  VI.]  ESTATES   BY    CURTESY.  163 

inheriting  the  estate.     It  is  a  freehold  estate  for  the  term  of 
his  natural  life.^ 

2.  Equity,  following  the  law,  holds  that  where  the  wife  is 
cestui  que  trust  in  fee  simple  or  in  tail,  the  husband  is  entitled 
to  curtesy  in  the  trust  estate,  in  the  same  manner  as  in  the 
legal  estate.^ 

3.  It  has  been  much  discussed  by  writers  whether  this 
estate  was  originally  an  institution  of  the  English  law,  as  stated 
by  Littleton,  §-35.  Sir  Martin  Wright  insists  that  it  was 
known  in  Scotland,  Ireland,  Normandy,  and  to  the  ancient 
Almain  laws ;  while  the  "  Mirror  "  ascribes  the  period  of  its  intro- 
duction into  England  to  the  time  of  Henry  I. ;  and  Wooddeson 
in  his  Lectures,  and  Christian  in  his  Notes  to  Blackstone,  con- 
sider it  of  English  origin,  and  thence  transferred  into  the  laws 
of  Scotland  and  Ireland,  though  it  seems  to  be  conceded  that 
it  takes  its  name  from  curtis,  a  court,  rather  than  from  any 
peculiar  regard  to  husbands  in  the  English  law.^  Mr.  Bar- 
rington  says  the  word  is  clearl}^  derived  from  the  French  word 
courtesie,  and  it  is  called  curtesy  of  England,  to  distinguish  it 
from  a  very  similar  right  by  the  Norman  law.^  The  writers 
all  seem  to  agree  that  it  is  not  of  feudal  origin,  though  by  that 
law  as  soon  as  a  son  was  born  the  father  was  admitted,  in 
respect  to  the  estate,  as  one  of  the  pares  curice,  and  did  homage 
for  the  same  alone,  while  prior  to  that,  husband  and  wife  did 
the  homage  together.^  Wright  and  Craig  ascribe  its  origin  to 
the  civil  law,  in  the  time  of  Constantine.^ 

*  4.  Whatever  may  have  been  its  origin,  it  has  been  [*129] 
a  well-known  estate  at  the  common  law,  with  well- 
defined  qualities  and  incidents,  from  a  period  as  early  probably 
as  the  reign  of  Henry  I.,  if  not  before.  Of  late,  however,  by 
reason  of  the  prevalence  of  marriage  settlements  in  England, 
it  has,  i>ractically,  become  infrequent  there.'^ 

5.  In  this  country  it  has  been  adopted  as  a  common-law 

1  Lit.  §  35  :  Co.  Lit.  30  a;  2  Bl.  Com.  126  ;  Adair  v.  Lott,  3  Hill,  186. 

2  Watts  V.  Ball,  1  P.  Wms.  109 ;  Co.  Lit.  29  a,  n.  165 ;  Tud.  Cas.  38. 

3  Wright,  Ten.  192,  193;  2  Bl.  Com.  126,  and  n.  In  Erskine,  Institutes,  p. 
380,  it  is  said,  that  in  Scotland,  "  the  right  of  courtesy  or  curiality  has  been  re- 
ceived by  our  most  ancient  customs." 

4  Stat.  440.  5  Wright,  Ten.  193  ;  2  Bl.  Com.  126,  127. 
b  Wright,  Ten.  194.  ^  Wms.  Real  Prop.  187. 


164  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

estate  in  all  the  older  States,  thougli  modified  in  some  by- 
statute  provisions.  In  Louisiana,  the  relation  of  husband  and 
wife  as  to  their  property  does  not  admit  of  curtesy.  In  Cali- 
fornia, no  curtesy  is  allowed,  but  all  real  estate  acquired 
during  coverture  belongs  to  husband  and  wife  in  common,  and 
the  survivor  takes  one  half  of  it  in  severalty.^  It  is  abolished 
in  Indiana.^  Also  in  Michigan.^  And,  it  would  seem,  in  New 
York  it  is  competent  for  the  wife,  by  her  separate  conveyance 
in  her  hfetime,  to  defeat  her  husband's  right  by  curtesy.^  The 
right  is  expressly  given  by  statute  in  Maine,  Massachusetts, 
Rhode  Island,  Delaware,  Michigan,  Minnesota,  Kentucky, 
Vermont,  and  Wisconsin.^  In  Virginia,  New  Jersey,  New 
Hampshire,  Alabama,  Missouri,  Illinois,  Tennessee,  Maryland, 
North  Carolina,  Mississippi,  and  Connecticut,  it  is  recognized 
by  the  courts  as  an  existing  estate.^  The  share  which  the 
husband  takes  by  the  law  of  South  Carolina,  he  has  in  fee.'^ 
In  Georgia,  the  husband  takes  an  absolute  estate  in  all  his 
■wife's  real  as  in  her  personal  property.^  In  Kansas,  the 
husband  takes  one  half  of  his  wife's  separate  property  abso- 
lutely, upon  her  decease,  without  will ;  and  if  without  issue, 
he  takes  an  absolute  property  in  all  her  estate.^  In  Ohio  and 
Oregon,  curtesy  is  given,  though  no  issue  be  born  alive. ^"^  In 
Texas,  all  property  which  a  husband  and  wife  bring  into  the 
marriage,  or  acquire  during  the  same,  becomes  the  common 
property  of  both.^^ 

6.  The  definition  before  given  suggests  the  essential  requi- 

1  Stat.  1850,  c.  147,  §  10 ;  Wood,  California,  Dig.  488,  §  10. 

2  Stat.  1860,  c.  46,  §  16.  »  Tong  v.  Marvin,  15  Mich.  73. 
*  4  Stat,  at  Large,  513  ;  Thurber  v.  Townshend,  22  N.  Y.  517. 

5  1  Greenl.  Cruise,  140,  n. ;  McCorry  v.  King's  Heirs,  3  Humph.  267 ;  Reaume 
V.  Chambers,  22  Mo.  86.  And  see  Ky.  Gen.  Stat.  1873,  p.  518;  Minn.  Stat. 
1866,  p.  363  ;  Vt.  Gen.  Stat.  1862,  p.  414 ;  Wis.  R.  S.  1858,  c.  89,  §  80.  Now 
curtesy  is  given  in  New  Hampshire  ;  Gen.  Stat.  1867,  c.  164,  §  15.  So  in  Ne- 
braska, unless  the  wife  have  issue  by  a  former  husband  who  would  take  the 
estate  ;  Gen.  Stat.  1873,  p.  280.  Curtesy  is  abolished  in  Nevada,  Laws,  1865 ;  and 
in  Daeotah,  Civ.  Code,  1866. 

^  1  Greenl.  Cruise,  140,  n. ;  Malone  v.  McLaurin,  40  Miss.  162 ;  Armstrong 
V.  Wilson,  60  111.  226. 

1  South  Carolina  Stat,  at  Large,  No.  1189,  §§  1,  10,  "  Dower." 
8  Code,  1873,  p.  428.  9  Gen.  Stat.  1868,  c.  38, 

10  R.  S.  of  Ohio,  1860,  c.  86,  §  17,  p.  504 ;  Stats,  of  Oregon,  1855,  p.  409. 
"  Portis  V.  Parker,  22  Texas,  699. 


CH.  VI.]  ESTATES    BY   CURTESY.  165 

sites  to  entitle  a  Imsband  to  curtesy.  1.  Marriage  ;  2.  Seisin 
of  wife  during  coverture  ;  3.  Birth  of  a  child  alive  during  the 
life  of  the  wife  ;  4.  Death  of  the  wife. 

7.  In  considering  these  in  detail,  the  marriage  must  be  a 
lawful  one,  though  if  it  be  a  voidable  one  it  will  give 
curtesy,  *  unless  it  is  actually  avoided  during  the  life   [*130] 
of  the  wife.     It  cannot  be  declared  void  afterwards.^ 

8.  In  respect  to  the  seisin  of  the  wife,  it  must,  in  general 
terms,  be  of  an  estate  of  inheritance.  But  this  may  be  either 
a  legal  or  an  equitable  one.  In  giving  form  and  effect  to  es- 
tates under  the  equitable  view  of  the  Statute  of  Uses,  courts 
of  equit}'  intended  to  follow,  and  in  most  respects  have  fol- 
lowed the  law,  in  regard  to  the  nature  and  incidents  of  such 
estates.  Among  these  was  the  right  of  curtesy,  and  husbands 
of  cestuis  que  trust  were  allowed  to  take  their  estates  by  cur- 
tesy, if  they  were  estates  of  inheritance,  of  which  the  wife 
had  what  answered  in  equity  to  a  seisin  at  law  of  legal  estates 
in  possession.2  And  the  receipt  of  the  rents  and  profits  by 
the  wife  as  such  cestui  que  trust  during  coverture,  is  ordinarily 
sufficient  seisin  in  equity  to  give  a  husband  curtesy.^  But  it 
does  not  seem  to  be  safiEicient  seisin  of  a  trust  estate,  to  give 
husband  curtesy  thereof,  that  the  wife  had  the  rents  and 
profits  of  the  estate,  if  it  was  by  the  terms  of  the  trust  to 
her  own  separate  use,  her  seisin  in  such  case  not  enuring  to 
the  benefit  of  the  husband.^  And  where  the  estate  was  con- 
veyed to  a  wife  to  her  sole  and  separate  use  and  disposal, 
and  free  and  clear  of  any  control  of  her  husband,  without 
being  subject  to  the  debts,  liabilities,  or  engagements  of  the 
husband,  it  was  held  that  a  devise  of  her  estate  defeated 
her  husband's  right  of  curtesy.^ 

9.  Originally,  curtesy  could  not  be  claimed  of  a  use  which 

1  2  Burns,  Eccl.  Law,  501. 

2  Roper,  Hus.  &  Wife,  18  ;  Id.  20 ;  Watts  v.  Ball,  1  P.  Wms.  109  ;  Robison 
V.  Codman,  1  Sumn.  128 ;  Morgan,  v.  Morgan,  5  Madd.  408 ;  Hearle  v.  Green- 
bank,  3  Atk.  717  ;  Sweetapple  v.  Bindon,  2  Vern.  537,  n.  3;  Davis  v.  Mason,  1 
ret.  508. 

8  Morgan  v.  Morgan,  5  Madd.  408 ;  4  Kent,  Com.  31  :  Tud.  Cas.  39. 
*  Hearle  v.  Greenbank,  3  Atk.  717  ;  Sweetapple  v.  Bindon,  2  Vern.  637,  n. 
5  Pool  V.  Blaikee,  53  111.  495 ;  Stokes  v.  McKibbin,  13  Penn.  St.  267.     See 
Bennett  v.  Davis,  2  P.  Wms.  316. 


166  LAW   OF  REAL   PROPERTY.  [BOOK  I. 

the  wife  had  as  cestui  que  use.  But  now  the  right  is  extended 
to  equities  of  redemption,  contingent  uses,  and  moneys  di- 
rected to  be  hiid  out  in  lands  for  the  benefit  of  the  wife. 
Equity  in  such  cases  treats  the  money  as  land.^  Thus,  where 
an  executor  sold  the  land  of  a  female  heir  under  such  circum- 
stances that  she  might  confirm  the  sale  and  take  the  money, 
or  avoid  it  and  take  the  land,  and  she  preferred  the  money, 
her  husband  was  held  entitled  to  curtesy  out  of  the  money,  she 

having  died  before  it  was  paid  over.^     So,  where,  in 
[*131]  order  to  make  partition,  the  *  share  of  a  wife,  tenant 

in  common,  was  sold,  the  husband  had  curtesy  in  the 
money.^ 

10.  In  many  of  the  States  curtesy  is  given,  by  statute,  in 
equitable  estates  of  which  the  wife  was  seised,  and  it  seems 
to  be  a  rule  recognized  in  most  if  not  in  all  the  States.*  Thus 
in  Rhode  Island  an  estate  was  conveyed  to  trustees  to  the 
sole  use  of  a  married  woman  during  life,  to  be  conveyed  to 
her  heirs  upon  her  failure  to  appoint  as  to  the  same,  and  she 
died  without  having  made  an  appointment.  Her  husband 
was  held  entitled  to  curtesy.^  So  where  the  conveyance  was 
to  J.  S.,  hahendum  to  him  and  his  heirs  to  the  only  use,  benefit, 
and  behoof  of  J.  D.,  a  married  woman,  it  was  held  to  be  a  legal 
estate  executed  in  J.  D.,  and  her  husband  had  a  right  to  cur- 
tesy therein.^  In  North  Carolina,  a  husband  has  curtesy  in 
a  trust,  or  an  estate  in  equity,  of  the  wife,  but  this  does  not 
extend  to  a  mere  right  in  equity  to  have  an  estate.'^ 


1  Davis  V.  Mason,  1  Pet.  508  ;  Sweetapple  v.  Bindon,  2  Vera.  536 ;  Fletcher 
V.  Ashburner,  1  Bro.  C.  C.  499  ;  3  Brest.  Abs.  381. 

2  Houghton  V.  Hapgood,  13  Pick.  154. 

3  Clepper  v.  Livergood,  5  Watts,  113;  Forbes  v.  Smith,  5  Ired.  Eq.  369.  Sq 
where  the  devise  was  to  a  daughter  and  her  heirs,  with  power  of  sale  in  the  ex- 
ecutor, and  he  sold,  the  husband  had  curtesy  in  the  money.  Dunscomb  v. 
Dunscomb,  1  Johns.  Ch.  508. 

*  1  Greenl.  Cruise,  147,  n.,  mentions  Alabama,  Kentucky,  Maryland,  Missis- 
sippi, and  Virginia.  Alexander  v.  Warrance,  17  Mo.  228  ;  Robison  v.  Codman, 
1  Sumn.  128  ;  Houghton  v.  Hapgood,  13  Pick.  154.  See  1  Bro.  C.  C.  503,  note. 
Am.  ed.,  for  a  collection  of  Arperican  cases.  Rawlings  v.  Adams,  7  Md.  64; 
Alexander  v.  Warrance,  17  Mo.  228 ;  Dubs  v.  Dubs,  31  Penn.  St.  154. 

6  Tillinghast  v.  Coggeshall,  7  R.  I.  383. 

6  Nightingale  u.  Hidden,  7  R.  I.  115. 

'  Sartill  V.  Robeson,  2  Jones,  Eq.  510. 


CH.  VI.]  ESTATES    BY   CUETEST.  167 

11.  To  recur  to  the  proposition  that  the  estate  of  the  wife 
must  be  one  of  inheritance,  no  question  could  arise  in  respect 
to  estates  in  fee-simple  absolute,  nor,  ordinarily,  as  to  estates 
tail.  But  questions  of  great  subtlety  and  difficulty  have 
arisen  in  respect  to  determinable  estates,  whether  upon  their 
determining  the  husband's  right  of  curtesy  is  defeated  or  not. 
In  an  earlier  part  of  the  work  it  became  necessary  to  speak 
of  estates  in  fee-simple  determinable,  as  well  as  in  tail,  of 
estates  defeasible  by  a  breach  of  condition,  and  of  the  deter- 
mination of  estates  by  the  happening  of  some  event  which,  at 
their  creation,  was  made  to  limit  their  duration.  In  applying 
the  principles  of  these  estates  to  that  of  the  wife,  in  order  to 
determine  whether  the  husband  has  right  of  curtesy  therein, 
it  has  been  settled,  in  respect  to  estates  tail,  for  instance,  that, 
though  the  issue  in  tail  fail  by  death  of  the  child  in  the  wife's 
lifetime,  whereby  her  estate  at  her  death  is  at  an  end,  the 
husband  takes  curtesy,  it  being  a  right  incident  to  such  an 
estate.^ 

12.  So,  where  the  devise  was  to  a  daughter  and  her  heirs, 
and  if  she  died  without  issue,  the  whole  estate  was  to  be  sold 
and  the  proceeds  paid  to  her  brothers  and  sisters,  and  she 
married  and  had  a  child,  which  died,  and  then  she  died  with- 
out issue,  her  husband  had  curtesy .^ 

13.  It  will  be  observed  in  the  above-cited  cases  that 

the  wife  *had  a  determinable  fee,  that  there  was  an  [*132] 
executory  devise  over  (the  nature  of  which  will  be 
more  fully  explained  hereafter)  in  case  of  its  determining, 
and,  what  may  perhaps  be  unimportant,  that  the  estate  was 
only  determined  at  the  moment  of  her  death,  her  estate  up  to 
that  time  having  been  a  fee  with  its  ordinary  incidents,  and 
her  death  the  natural  termination  of  her  estate.  But  if  the 
estate  of  the  wife  had  been  determined  by  the  breach  of  some 
condition  expressed  in  the  deed  thereof,  for  which  the  grantor 
or  his  heirs  had  entered,  this  entry  would  so  far  retroact,  that 
the  grantor  would  be  in  of  his  original  estate,  and  all  inter- 

1  Paine's  case,  8  Rep.  3i.  Post,  vol.  2,  *374. 

2  Buohannan  v.  Shaffer,  2  Yeates,  374 ;  Hay  v.  Mayer,  8  Watts,  202 ;  Talia- 
ferro V.  Burwell,  4  Call,  321.  The  same  principle  is  laid  down  in  Buckworth  w. 
Thirkell,  3  B.  &  P.  652,  n. 


168  LAW   OP   REAL   PROPERTY.  [BOOK   1. 

mediate  estates  and  rights  would  have  been  defeated,  includ- 
ing, of  course,  the  husband's  curtesy.  The  estate  would  be 
defeated  ab  initio.  So  if  the  seisin  of  the  wife  were  tortious, 
as  gained  by  disseisin,  or  under  a  defective  title,  and  had  been 
defeated  by  an  eviction  under  a  judgment  upon  a  title  para- 
mount, the  same  consequence  would  follow.  So  where  a 
daughter  becomes,  during  coverture,  seised  as  heir  to  her 
father,  and  the  mother  has  her  dower  set  out  of  the  same 
lands,  it  defeats  the  seisin  of  the  daughter  in  the  lands  so  set 
out,  and  with  it  her  husband's  curtesy,  since  the  widow's 
seisin,  when  consummated  by  the  setting  out  of  her  dower, 
is  considered  as  anterior  to  that  of  the  daughter  as  heir,  and 
of  course  converts  the  latter  into  that  of  a  reversion.  But  if 
the  widow  die  in  the  lifetime  of  the  daughter  and  her  hus- 
band, the  latter  will  have  curtesy  by  the  actual  seisin  thereby 
conferred  upon  his  wife.^ 

14.  A  principle  analogous  to  that  stated  above  is  applied 
in  respect  to  curtesy  in  equitable  estates.  Thus,  where  the 
devise  was  to  the  separate  use  of  the  daughter,  to  be  disposed 
of  as  she  should  see  fit,  the  trust  to  cease  on  the  death  of  the 
husband,  it  was  held  that  she  had  such  an  estate  of  inher- 
itance as  entitled  her  husband  to  curtesy.^  And  the  same  was 
held,  where,  by  a  marriage  settlement,  the  estate  was  con- 
veyed to  trustees  for  the  sole  and  separate  use  of  the  wife, 
with  power  to  appoint,  and  she  made  no  appointment.^ 
[*133]  There  was  in  *  both  these  cases  a  fee  in  the  wife,  and 
though,  while  living,  the  husband  was  excluded  from 
controlling  her  estate,  there  was  nothing  in  the  terms  of  the 
devise  or  settlement  expressly  excluding  him  from  the  ordi- 
nary right  of  curtesy.  It  was  accordingly  held  that  where 
land  was  given  in  trust  for  the  wife  and  her  heirs  for  her 
separate  use,  without  power  of  alienation  by  her  or  her  hus- 
band, he  was  entitled  to  curtesy.  The  effect,  by  statute,  in 
Pennsylvania,  being  to  make  no  distinction  between  legal 
and  equitable  estates  in  the  matter  of  curtesy  as  well  as 

1  1  Roper,  Hus.  &  Wife,  36  ;  Id.  42,  43  ;  Co.  Lit.  241,  Butler's  note,  170. 

■i  Payne  v.  Payne,  11  B.  Men.  188  ;  Clancy,  Rights  of  Worn.  193,  194. 

3  Morgan  v.  Morgan,  6  Madd.  410;  Clancy,  Rights  of  Worn.  193,  194.  But 
see  Cochran  v.  O'Hern,  4  Watts  &  S.  95.  See  also  Clark  v.  Clark,  24  Barb. 
582. 


CH.  VI.]  ESTATES   BY    CURTESY.  169 

dower,  the  law  of  that  State  seems  to  coincide  with  that  of 
Massachusetts,  which  gives  a  husband  curtesy  in  lands  of 
which  his  wife  is  seised  to  her  sole  and  separate  use  as  an 
inheritance.^ 

15.  But  though  it  is  not  competent  at  common  law  in  the 
grant  to  a  woman  of  an  estate  of  inheritance,  to  exclude  her 
husband  from  his  right  of  curtesy ,2  a  like  rule  does  not  prevail 
in  equity,  where  an  estate  may  be  so  limited  as  to  give  the 
wife  the  inheritance  and  deprive  the  husband  of  curtesy  if  the 
intent  of  the  devisor  or  settlor  be  express.^  Thus  in  Bennet 
V.  Davis,  the  testator  devised  lands  to  his  daughter  and  her 
heirs,  to  her  sole  and  separate  use,  directing  that  her  husband 
should  not  be  tenant  by  curtesy  in  case  he  survived,  but  that 
upon  her  death  the  lands  should  go  to  her  heirs  ;  the  court, 
in  order  to  carry  out  the  intent  of  the  testator,  held  the  hus- 
band to  be  trustee  for  the  heirs  of  the  wife,  whereby,  though 
he  took  the  legal  estate  of  curtesy  for  life,  the  heirs  had  the 
beneficial  interest.'*  And  the  husband  would  be  equally  ex- 
cluded from  such  equitable  estate  of  his  wife,  though  it  had 
been  created  by  himself:^ 

16.  There  is  no  difficulty  in  applying  the  rule  as  to  curtesy, 
where  the  estate  in  the  wife  is  the  only  one  created  by  the 
devisor  or  settlor,  and  that  is  so  defeated  by  condition  or 
otherwise,  as  to  be  again  in  the  original  owner's  hands,  in  the 
same  manner  as  if  it  had  never  passed  to  the  wife.  But  where 
the  grantor  or  devisor  parts  with  all  his  estate,  in  the  first 
place,  to  the  wife,  with  a  limitation  over  upon  the  happening 
of  some  event  which  of  itself  is  to  determine  her  estate  before 
its  natural  expiration,  and  pass  it  at  once  to  another,  questions 
of  great  subtlety  have  arisen  which  are  discussed  with  much 
acLtteness  by  courts  and  legal  writers.     The  question  briefly 

1  Dnbs  r.  Dubs,  31  Penn.  St.  149,  155;  Mass.  Gen.  Stat.  c.  90,  §  19. 

'^  Mildmay's  case,  6  Rep.  41 ;  Clancj-,  Rights  of  Worn.  191 ;  Mullany  v.  Mul- 
lany,  3  Green,  Ch.  16. 

»  Cochran  r.  O'Hern,  4  Watts  &  S.  95  ;  Hearle  v.  Greenbank,  3  Atk.  716; 
Morgan  v.  Morgan,  5  Madd.  408  ;  Stokes  v.  M'Kibbin,  13  Penn.  St.  267 ;  Bennet 
V.  Davis,  2  P.  Wms.  316 ;  Tud.  Gas.  39.  See  also  Rigler  v.  Clond,  14  Penn.  St. 
316. 

4  Bennet  v.  Davis,  2  P.  Wms.  316.     See  also  Clark  v.  Clark,  24  Barb.  582 

6  Rigler  V.  Cloud,  14  Penn.  St.  361. 


170  LAW   OP   REAL   PROPERTY.  [BOOK    L 

[*134]  stated  is,  In  *  what  cases  may  curtesy  be  claimed  in 
determinable  fees  of  the  wife  ? 

17.  Mr.  Roper's  illustration  of  an  estate  of  inheritance  de- 
termining by  its  natural  expiration,  is,  an  estate  in  fee  tail  in 
a  wife  who  dies  without  issue  or  heirs.  An  estate,  on  the 
other  hand,  determinable  upon  a  particular  event,  independent 
of  its  natural  expiration,  he  illustrates  by  an  estate  in  fee- 
simple  or  fee  tail  in  the  wife,  "  whilst  or  so  long  as  A  has 
heirs  of  his  body,  or  until  B  attains  twenty-one,  and  then  to 
B  in  fee."  ^  In  these  last  instances,  if  A  die  without  issue,  or 
B  attain  twentj^-one,  the  husband's  right  of  curtesy  will  be 
defeated,  with  the  estate  out  of  which  it  was  to  be  derived. ^ 
These  are  evidently  cases  of  simple  limitation  of  estates  by 
events,  upon  the  happening  of  which  the  estate  limited  is  de- 
termined, and  completely  at  an  end  with  all  its  incidents,  as 
if  it  had  been  measured  by  the  lapse  of  a  certain  number  of 
years,  months,  or  daj^s. 

18.  And  it  is  laid  down  as  a  general  proposition  that  "  any 
circumstance  which  would  have  defeated  or  determined  the 
estate  of  the  wife,  if  living,  will,  of  course,  put  an  end  to  the 
estate  by  curtesy."  ^ 

19.  But  the  examples  already  given  show  that  curtesy  may 
be  had  in  many  cases  where  the  estate  of  inheritance  granted 
in  the  first  instance  to  the  wife  has  determined  and  passed 
over  to  another  by  force  of  its  original  limitation.  Such  a 
limitation  as  is  here  referred  to  is  what  is  known  as  a  condi- 
tional one,  —  a  limitation  not  known  to  the  common  law,  but 
originating  in  the  doctrine  of  shifting  uses  or  executory  de- 
vises. It  implies  the  creation  of  two  estates  by  one  and  the 
same  deed  or  devise,  in  such  a  manner  that  the  first  will,  upon 
the  happening  of  a  certain  contingent  event,  be  defeated  and 
brought  to  an  end  before  its  natural  determination,  and  the 
second  estate  thereupon,  at  once,  and  without  any  act  or  thing 
done  to  give  it  effect,  come  in  and  take  the  place  of  the  first 
estate.  The  first  of  these  estates  may  be  a  fee,  and  the  event 
that  determines  it  and  passes  it  over  to  the  third  party  may 
be  the  dying  of  the  first  taker  without  issue,  or  before  a  cer- 

1  1  Roper,  Hus.  &  Wife,  37-39.         2  id.  39.  3  i  Atkinson,  Conv..  256. 


CH.  YI.]  ESTATES   BY   CURTESY,  171 

tain  age,  or  both  ;  and  the  question  then  has  been,  whether  the 
husband  or  wife  of  such  first  taker  is  thereby  defeated  of 
what  till  that  event  had  been  a  right  incident  to  an  existing 
estate,  or  might  enjoy  it,  although  as  to  the  deceased  the  es- 
tate was  determined  by  death.  Lord  Mansfield,  in  one  case, 
was  of  opinion  that  the  husband  in  such  a  case  was  entitled 
to  curtesy  ;  ^  and  Best,  C.  J.,  was  of  a  like  opinion  in  a  case  of 
dower.2  But  the  doctrine  does  not  find  favor  with  Mr.  Park 
in  his  work  on  dower ;  ^  and  the  opinion  of  Lord  Mansfield  is 
impugned  by  Mr.  Sugden.*  And  the  court  of  New  York,  at 
one  time,  held  that  such  a  determination  of  an  estate  defeats 
the  right  both  of  dower  ^  and  curtesy.^  And  the  English 
court,  in  a  case  where  an  estate  was  made  to  such  uses  as  C. 
D.  should  appoint,  and  in  default  of,  and  until  appointment, 
to  the  use  of  C.  D.  in  fee,  who  was  married,  it  was  held,  that 
by  executing  this  appointment  in  the  lifetime  of  C.  D.,  the 
estate  was  defeated,  and  with  it  his  wife's  right  of  dower.^ 
Mr.  Burton  alludes  to  the  circumstance,  that  in  one  class  of 
the  English  cases  above  cited  the  estate  was  defeated  by  the 
death  of  the  first  taker,  and  in  the  other  by  the  act  of  the 
first  taker  in  his  lifetime.  But  apparently  concluding  that 
this  can  hardly  reconcile  these  decisions,  he  adds  :  "  Such  and 
so  subtle  appears  the  distinction,  on  the  ground  of  positive 
law,  between  these  decisions."  ^  Gibson,  C.  J.,  undertakes 
to  explain  away  these  difficulties,  in  the  case  of  Evans  v. 
Evans,  although  it  is  nearly  identical  with  one  cited  from  the 
New  York  reports  below,  in  which  the  court  came  to  an  op- 
posite conclusion,  and  he  seems  to  overlook  the  fact,  that  there 
can  be  no  limitation  of  a  fee  upon  a  fee  at  common  law,  and 
that  the  questions,  in  most  of  the  cases,  do  not  arise  under 
limitations  at  common  law. 

20.  The  case  of  Evans  v.  Evans,  though  one  of  dower,  was 
decided  upon  analogy  to  cases  of  curtesy,  and  the  reasoning 

1  Buckworth  v.  Thirkell,  3  B.  &  P.  652,  n. 

2  Moody  V.  King,  2  Ring.  447.  3  Park,  Dower,  177-183. 
*  Sug.  Powers,  vol.  2,  p.  31. 

6  Weller  v.  Weller,  28  Barb.  588,  overruled  54  N.  Y.  285. 

6  Hatfield  v.  Sneden,  42  Barb.  622,  overruled  54  N.  Y.  285.     See  post,  *185. 

1  Ray  V.  Pung,  5  B.  &  Aid.  561. 

8  Burton,  R.  P.  145.     See  post,  *213-*216,  and  cases  cited. 


172  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

of  the  court  applies  to  the  one  as  Avell  as  to  the  other.  The 
devise  in  that  case  was  to  A  and  B,  their  heirs  and  assigns ; 
but  should  either  die  without  having  lawful  issue  living  at  his 
(her)  death,  then  the  estate  of  one  so  dying  to  vest  in  the 
survivor  and  heirs  forever.  It  was  held  that  upon  A  dying 
without  living  issue,  his  widow  (her  liusljand)  was  entitled  to 
dower  (curtesy)  out  of  the  estate.^  The  court —  Gibson,  Ch. 
J.  —  declared  that  none  of  the  text-writers,  except  Mr.  Pres- 
ton, had  suggested  the  true  solution  of  the  difficulty  in  such 
cases  in  giving  curtesy  or  dower  to  the  husband  or  wife  of  the 
deceased  person  whose  entire  estate  was  determined 
[*135]  by  the  death;  and  *held  the  solution  to  be,  that  es- 
tates determinable  hy  executory  devise  and  springing 
use,  are  not  governed  by  common-law  principles.^  It  was  ac- 
cordingly held  that  a  limitation  to  A  and  her  heirs,  with  a 
limitation  over  to  N  upon  A's  dying  without  issue,  was  such 
an  estate  in  A  as  gave  her  husband  the  right  of  curtesy 
therein.^ 

21.  If,  therefore,  the  estate  of  the  wife  be  an  estate  of  in- 
heritance, determinable  by  a  limitation  which  operates  to  de- 
feat her  estate  at  common  law,  the  right  of  curtesy,  it  would 
seem,  is  gone.  But  if  the  limitation  over  be  by  the  way  of 
springing  use  or  executory  devise  which  takes  effect  at  her 
decease,  thereby  defeating  or  determining  her  original  estate 
before  its  natural  expiration,  and  substituting  a  new  one  in 
its  place,  which  could  not  be  done  at  common  law,  the  seisin 
and  estate  which  she  had  of  the  fee-simple  or  tail  will  give 
the  husband  curtesy.*  And  the  doctrine  of  this  paragraph  is 
now  recognized  as  the  law  in  such  cases  in  New  York.^ 

22.  If  the  wife  be  one  of  two  or  more  joint  tenants,  though 

1  Evans  v.  Evans,  9  Penn.  St.  190. 

2  Buckworth  v.  Thirkell,  3  B.  &  P.  652,  n. ;  Moody  v.  King,  2  Bing.  45L  See 
also  Barker  v.  Barker,  2  Sim.  Ch.  252 ;  and  post,  pi.  44.     3  Brest.  Abs.  372. 

3  Grout  V.  Townshend,  2  Hill,  554. 

*  For  tlie  discussion  of  the  points  above  referred  to,  the  reader  is  referred  to 
1  Roper,  Hus.  &  Wife,  36-42;  4  Kent,  Com.  33,  and  n. ;  3  Brest.  Abs.  372,  384 ; 
Co.  Lit.  241  a,  Butler's  note,  170;  and  a  critical  article  of  much  learning  and 
nice  discrimination  in  11  Am.  Jur.  55.  The  point  is  also  examined  more  at 
large  in  respect  to  dower,  post,  chap.  7.  Wright  v.  Herron,  6  Rich.  Eq.  406 ; 
Grout  V.  Townshend,  2  Hill,  554. 

5  Hatfield  v.  Sneden,  54  N.  Y.  285. 


CH.  VI. J  ESTATES   BY   CURTESY.  173 

she  is  actually  seised,  yet  if  she  die,  living  her  co-tenant,  her 
husband  cannot  claim  curtesy,  from  the  very  nature  of  the 
estate,  which  becomes  at  her  death  the  absolute  and  several 
estate  of  the  survivor.^ 

23.  The  husband's  curtesy  is  in  many  respects  but  a  contin- 
uation of  the  estate  of  the  wife,  though  it  is  regarded  more 
in  the  nature  of  an  estate  by  descent  than  purchase.^ 

24.  For  these  and  other  reasons  it  is  held  that  the  wife  must 
have  been  actually  seised  of  the  estate  during  coverture, 
though  the  former  strictness,  in  this  respect,  has  been  relaxed. 
in  England  and  still  more  so  in  several  of  the  United  States.^ 
Though  it  is  laid  down  in  numerous  cases  that  in  order  to  en- 
title a  husband  to  curtesy,  the  wife  must  have  had  actual 
seisin,*  and  that  if  she  was  never  seised  during  coverture,  the 
husband  has  no  right  to  her  land  after  her  decease,^  it  is  appre- 
hended that  this  is  limited  to  those  cases  where  her  title  is 
incomplete,  at  common  law,  without  a  formal  entry,  as  in  the 
case  of  an  heir  or  devisee,  and  does  not  extend  to  cases  where 
the  wife  acquires  title  by  deed,  the  effect  of  which  is  to  pass  a 
legal  seisin  and  title  to  the  land.^  Nor  is  an  entry  necessary, 
in  case  of  a  descent  of  land  in  Missouri,  to  entitle  the  husband 
of  the  heir  to  curtesy  out  of  the  same.'^  So  in  Mississippi,  a 
constructive  seisin  of  a  wife  is  sufficient,  as  where  the  land  is 
vacant,  or  in  the  hands  of  a  tenant  for  years,  or  at  sufferance. 
But  if  her  seisin  be  only  of  a  reversionary  interest,  subject  to 
a  prior  freehold,  it  does  not  give  the  husband  a  right  to 
curtesy.^ 

25.  Still,  it  is  the  general  rule  of  law  in  both  countries  that, 
if  the  estate  be  such  that  there  may  be  an  entry  made  upon  it, 
there  must  be  such  an  entry  during  coverture,  in  order  to  give 

1  Lit.  §45;  Tud.  Cas.  38. 

2  Roper,  Hus.  &  Wife,  35 ;  Watson  v.  Watson,  13  Conn.  83. 

3  Perkins,  §§  457,  470 ;  Stearns,  Keal  Act.  283 ;  Doctor  &  Stud.  145 ;  Tud. 
Cas.  40 ;  1  Koper,  Hus.  &  Wife,  7 ;  4  Kent,  Com.  30,  n. 

*  Orr  V.  Hollidays,  9  B.  Mon.  59 ;  Stinebaugh  v.  Wisdom,  13  B.  Mon.  467. 

5  Petty  V.  Malier,  15  B.  Mon.  591. 

8  Adair  v  Lott,  3  Hill,  186  ;  Jackson  v.  Johnson,  6  Cowen,  98.  See  also  Wass 
V.  Bucknam,  38  Maine,  360. 

^  Harvey  v.  Wickham,  23  Mo.  115;  Reaume  v.  Chambers,  22  Mo.  36,  54; 
Stephens  v.  Hume,  25  Mo.  349. 

8  Malone  v.  McLaurin,  40  Miss.  163 ;  Ferguson  v.  Tweedy,  43  N.  Y.  543. 


174  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

the  husband  curtesy.^  It  is  said  that  the  chief  reason  for  re- 
quiring, in  this  country,  the  husband  to  take  the  lauds  of  the 
wife  into  actual  possession,  is  to  strengthen  her  title  to  them, 
and  protect  them  from  adverse  claim,  and  from  hostile  posses- 
sion, which  might,  by  its  continuance,  endanger  her  right. 
And  this  may  as  well  be  done  by  the  husband's  vendee  as  by 

himself.2 
[*136]       *26.  If,  therefore,  a  woman  be  disseised  and  then 

marry,  the  husband  must  regain  the  seisin  by  making 
an  entry  during  coverture.^ 

27.  In  England,  where  land  descends  to  the  wife,  the  hus- 
band must  enter  to  gain  suificient  seisin  to  give  him  curtesy.* 

28.  But  in  this  country,  as  a  general  proposition,  the  seisin 
in  law  which,  in  the  case  just  supposed,  is  thrown  upon  the 
heir  if  the  ancestor  die  seised,  would  be  sufficient  to  give  her 
husband  curtesy  without  actual  entry  made.^  And  in  Penn- 
sylvania, Connecticut,  and  Ohio,  a  right  of  entry  on  the  part 
of  the  wife  would  be  a  sufficient  seisin,  although  the  premises 
were  in  the  adverse  possession  of  another.^ 

29.  And  it  may  be  laid  down  as  a  general  proposition  that 
in  tliis  country,  if  lands  are  vacant  or  wild  lauds,  ownership 
draws  to  it  the  legal  seisin  without  any  actual  seisin  being 
taken.''  But  the  husband  of  a  wife  who  is  entitled  to  a  pre- 
emptive right  in  public  land,  is  not  entitled  to  curtesy  in  the 
same.^    But  in  Kentucky,  actual  seisin  is  requisite  in  order  to 

t  1  Adams  v.  Logan,  6  Mon.  175;  Mercer  v.  Selden,  1  How.  37;  Neely  v.  But- 
ler, 10  B.  Mon.  48. 

2  Vanarsdall  v.  Fauntleroy,  7  B.  Mon.  402. 

3  Perkins,  §  458;  1  Roper,  Hus.  &  Wife,  8;  Den  v.  Demarest,  1  N.  J.  525. 

4  Prest.  Abs.  381 ;  Co.  Lit.  29  a. 

5  Day  V.  Cochran,  24  Miss  2G1 ;  Adair  v.  Lott,  3  Hill,  182 ;  Jackson  v.  John- 
son, 5  Cow.  74;  Chew  v.  Commissioners,  &c.,  5  Rawie,  160  ;  Stephens  v.  Hume, 
25  Mo.  349 ;  Mass.  Gen.  Stat.  c.  134,  §  3. 

6  Stoolfoos  V.  Jenkins,  8  S.  &  R.  175  ;  Bush  v.  Bradley,  4  Day,  298 ;  Kline  v. 
Beebe,  6  Conn.  494 ;  Borland  v.  Marshall,  2  Ohio,  n.  s.  308  ;  Mitchell  v.  Ryan,  3 
Ohio,  N.  s.  377  ;  Merritt  v.  Home,  5  Oliio  St.  307. 

■?  Jackson  v.  Sellick,  8  Johns.  262 ;  Davis  v.  Mason,  1  Pet.  506 ;  Weir  v.  Tate, 
4  Led.  Eq.  264 ;  Barr  v.  Galloway,  1  McLean,  476 ;  Pierce  v.  Wanett,  10  Ired. 
446  ;  McCorry  v.  King,  3  Humph.  267  ;  Wells  v.  Thompson,  13  Ala.  793 ;  Guioa 
r.  Anderson,  8  Humph.  298,  324 ;  Day  v.  Cochran,  24  Miss.  277 ;  Reaume  v. 
Chambers,  22  Mo.  541.    But  see  Vanarsdall  v.  Fauntleroy,  7  B.  Mon.  401, 

8  McDaniel  v.  Grace,  15  Ark.  465. 


CH.  VI.]  ESTATES   BY   CURTESY.  175 

give  curtesy  even  of  wild  lands. ^    Though  the  receipt  of  the 
rents  and  profits  by  the  wife  will  be  sufficient.^ 

30.  A  decree  of  a  court  of  competent  jurisdiction,  settling 
the  right  of  husband  and  wife  to  the  wife's  land,  would  be 
deemed,  so  far  as  his  right  to  curtesy  is  concerned,  equivalent 
to  actual  possession.^ 

31.  The  possession  by  a  co-tenant  is  sufficient  to 

give  *  curtesy  to  the  husband  of  a  tenant  in  common,  [*137] 
the  entry  and  possession  of  one  being  the  entry  and 
possession  of  all.^  So  if  the  grantee  of  the  husband  enters  upon 
the  land  of  the  wife,  and  holds  possession  under  such  grant, 
he  will  have  the  rights  of  a  tenant  by  curtesy  against  the  heirs 
of  the  wife  during  the  life  of  the  husband,  although  the  latter 
never  had  actual  possession  of  the  premises.^ 

32.  The  possession  by  a  tenant  for  years  or  at  will  of  the 
wife,  is  a  sufficient  seisin  in  the  husband,  and  the  same  will  be 
true  though  the  estate  descend  to  the  wife  subject  to  a  tenancy 
for  years  in  another,  and  the  wife  die  before  receiving  rent ; 
the  possession  of  the  tenant  in  such  cases  being  regarded  as 
the  possession  of  the  owner  of  the  inheritance.^ 

33.  But  if  the  estate  of  the  wife  be  a  reversionary  one,  sub- 
ject to  a  prior  freehold  estate  in  another,  her  constructive 
seisin  of  such  reversion  will  not  entitle  her  husband  to  curtesy, 
unless  the  prior  freehold  determine  during  coverture."  The 
case  of  Doe  v.  Rivers  ^  illustrates  this  proposition.  In  that 
case  the  tenant  in  tail,  previous  to  her  marriage,  made  a  settle- 

1  Neely  v.  Butler,  10  B.  Mon.  4-8;  Stinebaugh  v.  Windsor,  13  B.  Mon.  467, 
overruling  the  dicta  of  the  Supreme  Court  in  Davis  v.  Mason,  1  Pet.  508 ;  Welch 
V.  Chandler,  13  B.  Mon.  430. 

2  Powell  V.  Gossom,  18  B.  Mon.  179. 

3  Ellsworth  V.  Cook,  8  Paige,  Ch.  646. 

4  Sterling  v.  Penlington,  2  Eq.  Cas.  Abr.  730  ;  Wass  v.  Bucknam,  38  Me.  360. 

5  Vanarsdall  v.  Fauntleroy,  7  B.  Mon.  401. 

6  Tayloe  v.  Gould,  10  Barb.  388  ;  Mackey  v.  Proctor,  12  B.  Mon.  433 ;  DeGrey 
V.  Richardson,  3  Atk.  469;  Jackson  i;.  Johnson,  5  Cow.  74;  Lowry  v.  Steele,  4 
Ham.  170;  Green  i;.  Liter,  8  Cranch,  245;  Powell  v.  Gossom,  18  B.  Mon.  179; 
Day  V.  Cochran,  24  Miss.  261 ;  Carter  v.  Williams,  8  Ired.  Eq.  177. 

"l  Adams  v.  Logan,  6  Mon.  175 ;  Stoddard  v.  Gibbs,  1  Sumn.  263 ;  2  BI.  Com. 
127;  Co.  Lit.  29  a;  3  Brest.  Abs.  382;  Lowry  v.  Steele,  4  Ham.  170;  Chew  v. 
Comm'rs,  &c.,  5  Rawie,  160 ;  Hitner  v.  Ege,  23  Penn.  St.  305 ;  Orford  v.  Benton, 
36  N.  H.  395  ;  Bank  v.  Davis,  31  Ala.  626  ;  Shores  v.  Carley,  8  Allen,  426. 

8  Doe  V  Rivers,  7  T.  R.  272. 


176  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

ment,  by  lease  and  release,  upon  her  husband  for  life,  remainder 
to  herself  for  life,  remainder  to  the  first  and  other  sons  of  the 
marriage.  She  dying  in  the  lifetime  of  her  husband,  the  heir 
in  tail  entered,  and  it  was  held  the  husband  was  not  entitled 
to  a  life  estate  by  the  settlement  or  by  curtesy ;  for,  first,  she, 
as  tenant  in  tail,  could  not  by  such  conveyance  affect  the 
rights  of  the  issue  in  tail ;  secondly,  the  husband  on  the 
marriage  became  seised  of  a  freehold  himself,  and  his  wife's 
interest  was  thereby  turned  into  a  reversionary  one.  In  another 
case,  A,  by  indenture,  conveyed  an  estate  to  B,  the  wife  of  C, 
in  fee,  in  which  B  and  C  agreed  that  A  should  occupy  and 
possess  it  free  from  rent  during  her  (A's)  life.  B  died  before 
A,  and  it  was  held  that  the  husband  could  not  claim  curtesy .^ 

34.  It  may  be  proper,  in  this  connection,  to  notice  the  effect 
upon  the  wife's  seisin  and  consequently  the  husband's  right  to 
curtesy,  where  the  estate  comes  to  her  after  it  has  been  in  the 
hands  of  another  for  the  purpose  of  raising  money  for  the  pay- 
ment of  debts  and  the  like.  If,  for  instance,  a  grantor  by  deed 
convey  lands  to  another  until  he  can,  out  of  the  rents  and 

profits,  pay  the  grantor's  debts,  the  grantee  will  have 
[*138]  a  freehold  *  estate,  because  of  the  uncertain  duration, 

though  it  might  be  obvious  that,  in  all  human  prob- 
abilitj^,  the  rents  of  the  estate  would  cancel  these  debts  in  ten 
years. 

35.  But  if  this  were  done  by  devise  to  his  executors,  for 
instance,  until  his  debts  should  be  paid,  it  would  give  but  a 
chattel  interest  to  the  executors.  If,  therefore,  the  heir  of  the 
grantor,  in  the  former  case,  were  a  married  woman  who  should 
die  before  the  estate  of  the  grantee  had  determined  by  pay- 
ment of  the  debts,  her  husband  would  not  have  curtesy ; 
while  if  she  were  heir  of  the  devisor,  as  in  the  latter  case,  he 
would.2 

36.  So  where  testator  devised  his  estate  to  his  widow  until 
she  could  raise  a  certain  amount,  and  then  devised  the  estate 
to  his  daughter,  subject  to  this  devise  to  his  widow,  it  was 
held  that  the  husband  of  the  daughter  was  entitled  to  curtesy 
on  the  same.^ 

1  Planters'  Bank  v.  Davis,  31  Ala.  633.  2  Manning's  case,  8  Rep.  96. 

3  Robertson  v.  Stevens,  1  Ired.  Eq.  247. 


CH.  VI.]  ESTATES   BY   CURTESY.  177 

37.  Where  that  of  which  the  husband  claims  curtesy  lies  in 
grant,  like  a  rent,  as  understood  at  the  common  law,  and  not 
in  livery,  actual  seisin  is  not  required,  seisin  in  law  being 
sufficient.^ 

38.  Nor  is  it  required  in  cases  of  grant  by  deed,  where  the 
seisin  passes  to  the  grantee  of  the  inheritance  by  force  of  the 
Statute  of  Uses.2 

39.  But  the  seisin  which  a  trustee  has  of  the  legal  estate, 
if  held  by  the  wife,  does  not  give  the  husband  curtesy." 

40.  And  in  analogy  to  this  doctrine,  where  a  woman,  before 
marriage,  contracted  by  parol  to  convey  her  land  for  a  price 
which  was  paid  her,  and  the  purchaser  was  put  into  posses- 
sion, and  remained  so  after  her  marriage  and  during  her  life, 
it  was  held  that  the  husband  could  not  claim  curtesy.^ 

41.  Nor  would  it  make  any  difference  in  the  above  case  of 
seisin  by  wife  as  trustee,  if  she  should  become  entitled 

to  a  *  reversion  of  the  equitable  estate  after  the  equi-  [*139] 
table  life-estate  of  another,  if  she  dies  before  such  in- 
termediate estate  is  determined,^ 

41  a.  Where  a  woman,  on  the  eve  of  her  marriage,  con- 
veyed her  real  estate  without  the  consent  of  her  contemplated 
husband,  it  was  held  to  be  a  fraud  upon  his  rights  and  void  as 
to  him.^ 

42.  Sometimes,  however,  the  owner  of  a  reversion  may,  by 
its  being  united  with  the  life-estate  that  precedes  it,  acquire 
such  an  immediate  seisin  as  to  raise  the  right  of  curtesy.  But 
this  may  depend  upon  whether  it  is  by  deed  or  devise.  Thus, 
if  a  life-estate  and  the  reversion  in  fee  come  together  in  one 
person  by  deed,  the  reversion  will  merge  the  life-estate,  even 
though  a  contingent  remainder  were  limited  to  intervene  be- 
tween them  ;  the  life-estate  merging  in  the  reversion,  defeats 
the  contingent  remainder  at  common  law  by  destroying  the 

1  Davis  V.  Mason,  1  Pet.  507  ;  Co.  Lit.  29  a ;  Jackson  v.  Sellick,  8  Johns.  262. 

2  Jackson  v.  Johnson,  5  Cow.  74.  ^  Chew  v.  Comm'rs,  &c.,  5  Kawle,  KiO. 
*  Welsh  V.  Chandler,  13  B.  Mon.  431.     In  this  case  there  was  a  deed  given  by 

husband  and  wife,  but  the  court  held  the  doctrine  of  the  text,  without  reference 
to  the  deed.  ^  Chew  v.  Comm'rs,  &c.,  5  Rawle,  160. 

6  Hobbs  V.  Blandford,  7  Mon.  469.  See  also  Spencer  v.  Spencer,  3  Jones,  Eq. 
404 ;  Williams  v.  Carle,  2  Stockt.  543.  See  post,  vol.  2,  *537,  Chandler  v.  Hol- 
lingsworth. 

VOL.  1.  12 


178  LAW    OF   REAL   PROPERTY.  [BOOK   I. 

freehold  particiilar  estate  which  supported  it.  If,  therefore, 
the  person  in  whom  the  two  unite  is  a  feme  covert,  her  hus- 
band might  claim  curtesy.  But  if  there  be  a  devise  to  one 
for  life,  with  a  contingent  remainder  in  fee,  there  would  be  a 
reversion  expectant  upon  the  failure  of  the  contingent  re- 
mainder which  would  descend  to  the  testator's  heir-at-law. 
And  if  she  happened  to  be  the  devisee  for  life,  and  the  doctrine 
of  merger  above  explained  were  to  apply,  her  reversion  would 
merge  her  life-estate  and  destroy  the  contingent  remainder. 
But  as  this  would  be  gi"V"ing  the  efFect  to  a  will  to  destroy 
itself,  the  law  in  such  case  will  keep  the  life-estate  and  rever- 
sion distinct,  and  the  husband  of  such  devisee  cannot  claim 
curtesy.  Still,  if  such  devisee  for  life  were  to  acquire  such 
reversion  by  an}^  other  means  than  by  the  will  which  created 
the  several  estates  for  life  and  in  remainder,  it  would  merge 
the  life-estate,  and  the  effect  would  be  to  give  the  husband  of 
the  tenant  curtesy  therein. ^ 

43.  The  same  rule  as  applies  in  case  of  devise  will,  how- 
ever, apply  where  a  tenant  for  life  becomes  such,  and  also  a 
reversioner  in  fee  with  an  interposed  contingent  remainder, 

by  the  same  deed.^ 
[*140]  *44.  Curtesy  being  considered  a  continuance  of  the 
inheritance,  it  is  not  only  necessary  that  the  wife 
should  have  had  a  living  child,  but  it  must  have  been  such  a 
child  as  by  possibility  might  have  inherited  the  estate. 
Thus,  if  the  inheritance  be  in  tail  male,  and  the  child  be  a 
female,  it  would  not  be  sufficient.^  So,  where  the  devise  was 
to  A  and  her  heirs,  and  if  she  died  leaving  issue,  then  to  such 
issue  and  their  heirs,  it  was  held  that  upon  her  death  her  hus- 
band could  not  claim  curtesy,  since  her  issue  would  take  as 
purchasers  and  not  as  heirs  of  the  mother  to  a  part  of  her 
inheritance.^ 

45.  It  is  immaterial  whether  the  child  is  born  before  or 
after  the  wife  acquires  her  estate,  if,  had  it  lived,  it  would 

1  Plunket  V.  Holmes,  1  Lev.  11  ;  Kent  v.  Hartpoole,  3  Keble,  781 ;  1  Cruise, 
Dig.  149;  1  Roper,  Hus.  &  Wife,  10;  2  Crabb,  Real  Prop.  113;  Doe  v.  Scuda- 
more,  2  B.  &  P.  294 ;  Boothby  v.  Vernon,  2  Eq.  Cas.  Abr.  728,  s.  c.  9  Mod.  147. 

2  Hooker  v.  Hooker,  Cas.  temp.  Hardw.-  13. 

»  Co.  Lit.  29  b  ;  Day  v.  Cochran,  24  Miss.  261 ;  Heath  v.  "White,  5  Conn.  228, 230. 
*  Barker  v.  Barker,  2  Sim.  Ch.  249;  Sumner  v.  Partridge,  2  Atk.  47. 


CH.  VI.]  ESTATES   BY   CURTESY.  179 

have  inherited  that  estate ;  and  it  matters  not  though  it  die 
before  she  acquires  the  estate,  so  far  as  the  husband's  right 
to  curtesy  is  concerned.^  So,  when  a  wife  in  Massachusetts 
conveyed  her  estate,  which  she  held  to  her  own  sole  use, 
without  her  husband  joining  in  the  deed,  before  any  child 
born  of  the  marriage,  and  a  child  was  born  after  the  convey- 
ance, it  was  held  that  it  gave  him  a  right  of  curtesy  in  the 
same,  as  a  wife,  under  the  statute,  cannot,  by  deed,  defeat 
her  husband's  right  if  he  survive  her.^  It  was  accordingly 
held,  where  adverse  possession  was  taken  in  the  life  of  the 
wife  during  coverture,  and  she  then  had  issue  and  died,  that 
her  husband  was  entitled  to  curtesy.^  And  where  a  man 
married  a  widow  who  already  had  a  son,  and  had  by  her  a 
child,  he  was  held  entitled  to  curtesy  i-n  her  estate  against 
any  claim  of  such  prior  son.* 

46.  But  in  most  of  the  States  where  curtesy  is  allowed, 
great  strictness  is  required  in  the  proof  that  the  child  was 
actually  born  alive  in  the  lifetime  of  the  mother.  In  Penn- 
sylvania, the  necessity  of  a  child  being  born  is  dispensed  with 
by  statute.^  The  maxim  of  the  common  law  on  the  subject 
of  the  birth  of  such  child  is  mortuus  exitus  non  est  exitus,  and 
if  the  mother  die  before  the  exitus  of  the  child,  and  that  be 
by  the  Cesarean  operation,  though  it  be  born  alive,  it  would 
not  be  sufficient  to  give  the  father  curtesy.^  The  rule  in 
Normandy,  where  curtesy  is  allowed,  is  thus  stated  :  II  faut 
qiiil  soit  sorti  du  ventre  de  la  mere,  il  ne  suffiroit  pas  que  la 
tete  eui  parut  et  qu'on  pretendit  quHl  auroit  donne  des  signes 
de  vie  par  d&s  oris  ou  autrementJ 

47.  As  soon  as  a  child  is  born,  the  husband's  right  to  cur- 
tesy is  said  to  be  initiate,  and  is  consummate  only  upon  the 

1  Co.  Lit.  29  b;  Jackson  v.  Johnson,  5  Cow.  74 ;  2  Bl.  Com.  128. 

2  Comer  v.  Chamberlain,  6  Allen,  166. 

3  Jackson  v.  Jolmson,  5  Cow.  74;  Guion  v.  Anderson,  8  Humph.  307. 

*  Heath  v.  White,  6  Conn.  236.  But  the  law  is  otherwise  by  statute  in  Michi- 
gan.    Hathorn  v.  Lyon,  2  Mich.  93. 

5  1  Cruise,  Dig.  143,  n.  ;  Dunlop's  Laws,  p.  510 ;  Lancaster  Co.  Bank  v.  Stauf- 
fer,  19  Penn.  St.  398  ;  Co.  Lit.  29  b ;  Dubs  v.  Dubs,  31  Penn.  St.  164.  This  point 
is  discussed  in  connection  with  the  question  how  far  a  child,  en  ventre  sa  mere,  may 
be  considered  as  in  existence,  in  Marsellis  v.  Thalhiraer,  2  Paige,  Ch.  35. 

6  Co.  Lit.  29  b ;  Marsellis  v.  Thalhimer,  2  Paige,  Ch.  42. 
'•  1  Flaust,  Coutumes  de  Normandie,  613. 


180  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

wife's  death.  The  freehold  is  thereupon,  ipso  facto^  in  him, 
nor  would  any  disclaimer  of  his,  short  of  an  actual  release, 
prevent  its  vesting  in  him  instantly  upon  the  death  of  the 
wife.     It  devolves  upon  him   as  the  estate  of  the  ancestor 

does  upon  the  heir.^ 
[*141J      *48.   His  estate  thus  acquired  is  one  for  life  in  his 

own  right,  and,  although  it  is  said  to  have  had  its 
origin  in  the  husband's  obligation  to  support  the  children, 
he  is  as  much  entitled  to  it  when  they  do  not  need  support 
as  when  they  do,  and  where  they  do  not  as  where  they  do 
live  any  length  of  time,  if  actually  born  alive.^ 

49.  Though  somewhat  anticipating  the  subject-matter  of  a 
subsequent  chapter  (ch.  9),  it  seems  desirable  to  ascertain 
here,  what  is  the  nature  of  the  husband's  right  of  curtesy 
initiate  during  the  life  of  the  wife,  and  how  far  she  or  her 
heirs  would  be  affected  by  a  tortious  entry  and  possession  by 
a  stranger  during  the  coverture.  The  cases  agree,  that  by 
the  marriage  the  husband  acquires  an  estate  of  freehold  in 
the  inheritance  of  the  wife,  in  her  right,  but  he  is  not  sole 
seised  during  coverture,  and  that  after  issue  had,  though  he 
is  tenant  by  the  curtesy,  he  is  jointly  seised  with  the  wife.^ 
The  court  of  New  Hampshire  regard  this  seisin  and  posses- 
sion of  the  husband  by  right  of  curtesy  initiate,  as  so  entirely 
his  own,  that  if  he  is  disseised  during  coverture,  neither  his 
wife  nor  her  heirs  would  be  affected  by  a  possession  under 
such  disseisin,  however  long  continued,  so  long  as  the  hus- 
band was  alive,  and  that  they  would  have  twenty  years  after 
his  death  in'which  to  regain  their  seisin  by  entry  or  action,  in 
the  same  way  as  a  reversioner  who  had  an  estate  expectant 
upon  an  estate  for  life.^  The  court  of  Tennessee,  on  the  con- 
trary, hold  that  such  disseisin  and  possession  run  against  both 
husband  and  wife,  and  would  bar  the  title  of  both  as  well  as 

1  2  Bl.  Com.  128;  Watson  v.  Watson,  13  Conn.  83;  Witham  v.  Perkins,  2 
Greenl.  400  ;  Walk.  Am.  Law,  829. 

•i  Heath  v.  White,  5  Conn.  23.5. 

3  Weisinger  v.  Muqihy,  2  Head,  674 ;  Guion  v.  Anderson,  8  Humph.  208,  325  ; 
Butterfield  v.  Beall,  3  Ind.  203  ;  Jackson  v.  Johnson,  5  Cow.  74,  95  ;  Junction  Rail- 
road V.  Harris,  9  Ind.  184  ;  McCorry  v.  King's  Heirs,  3  Humph.  267 ;  Melvin  v. 
Prop.,  &c.,  16  Pick.  161 ;  pout,  chap.  9,  pi.  3.  See  also  Wass  v.  Bucknam,  38 
Maine,  356.  ■*  Foster  v.  Marshall,  2  Foster,  491. 


CH.  VI.]  ESTATES   BY   CURTESY.  181 

of  her  heirs,  except  for  the  saving  in  the  statute  in  favor  of 
f^mes  covert,  &c.,  which  gives  a  certain  time  in  which  to  bring 
an  action  after  such  disability  is  removed.  The  same  rule 
applies  as  to  her  heirs  in  case  the  husband  survives  her,  they 
having  three  years,  the  time  given  to  persons  under  disabili- 
ties after  the  same  are  removed,  in  which  to  sue  for  the  land. 
And  the  same  doctrme  is  maintained  in  Maine  and  Massa- 
chusetts.^* 

60.  Curtesy  being  considered  a  continuance  of  the  wife's 
inheritance,  the  husband  takes  the  estate  subject  to  the  same 
incumbrances  under  which  she  held  it.^ 

51.  And  this  right  initiate,  as  well  as  the  estate  consum- 
mate, is  liable  to  be  taken  for  his  debts ;  nor  can  he  defeat  the 
right  by  any  disclaimer  of  his  right  to  curtesy.^  Nor  will 
equity  interfere  in  favor  of  wife  or  children  to  prevent  his 
creditors  levying  upon  his  estate.* 

*  Note.  —  Tlie  court  of  New  Hampshire  refer  to  Jackson  v.  Johnson,  5  Cowen, 
74,  and  Heath  v.  White,  5  Conn.  228,  as  liaving  been  "decided  in  accordance 
with  our  views,  and  we  think  upon  sounder  principles  than  the  cases  in  Massa- 
chusetts to  which  we  have  referred."  But  it  is  to  be  noticed  that  in  the  first  of 
these  cases  the  disseisin  occurred  before  the  husband's  right  to  curtesy  liad  be- 
come initiate  by  the  birth  of  a  child,  and  the  court  were  divided  in  opinion. 
And  in  tlie  other,  the  alleged  adverse  possession  of  the  tenant  did  not  begin 
until  after  the  death  of  the  wife,  and  the  husband  was  the  only  one  entitled  to 
the  possession  or  liable  to  be  disseised,  the  heir  being  a  mere  reversioner,  and, 
of  course,  not  affected  by  any  possession  adverse  to  the  husband  as  tenant  for 
life.  The  foregoing  cases  do  not  relate  to  the  effect  of  a  conveyance  by  the 
husband.  By  the  statute  32  Hen.  VIII.  c.  28,  which  is  a  part  of  the  common  law  of 
Massachusetts,  if  the  husband  alone  conveys  his  wife's  land,  it  shall  not  work  a 
discontinuance  of  lier  estate,  but  she  or  her  heirs,  at  his  decease,  may  enter 
upon  the  same  as  if  no  such  conveyance  had  been  made.  See  Bruce  v.  Wood,  1 
Met.  542,  544 ;  Miller  v.  Shackleford,  4  Dana,  277 ;  2  Kent,  Com.  138,  note ; 
post,  p.  *425. 

1  Weisinger  v.  Murphy,  Guion  v.  Anderson,  McCorry  v.  King's  Heirs,  sup. ; 
Melius  V.  Snowman,  21  Maine,  205;  Melvin  v.  Prop'rs,  &c.,  16  Pick.  161 ;  Bruce 
V.  Wood,  1  Met.  542.  ^ee  post,  p.  *425;  Coe  v.  Wolcottville  Mg.  Co.,  35  Conn. 
177  ;  Watson  v.  Watson,  10  Conn.  88. 

2  2  Crabb,  Keal  Prop.  119  ;  1  Roper,  Hus.  &  Wife,  35. 

3  Burd  V.  Dansdale,  2  Binn.  80 ;  Watson  v.  Watson,  13  Conn.  83 ;  Canby  v. 
Porter,  12  Ohio,  79 ;  Van  Duzer  v.  Van  Duzer,  6  Paige,  Ch.  366 ;  Litchfield  v. 
Cud  worth,  15  Pick.  23  ;  Roberts  v.  Whiting,  16  Mass.  186  ;  Mattocks  v.  Stearns, 
9  Vt.  326  ;  Lancaster  Co.  Bank  v.  Stauffer,  10  Penn.  St.  398;  Day  v.  Cochran, 
24  Miss.  261,  275.  But  query,  how  far  it  is  hable  for  debts  in  Missouri ;  Harvey 
V.  Wickham,  23  Mo.  117. 

*  Van  Duzer  v.  Van  Duzer,  6  Paige,  Ch.  366. 


182  LAW  OF  REAL  PROPERTY.  [BOOK  L 

52.  It  was  once  deemed  an  insuperable  disability  to  the 
right  of  curtesy  that  the  husband  was  an  alien,  the  law  not 
lending  him  its  aid  to  obtain  an  estate  which,  when  obtained, 
it  might  at  once  take  from  him.^ 

53.  There  are  various  ways  in  which  a  husband  may  forfeit 
his  estate  to  curtesy,  and  in  some  of  the  States  this  is  a  conse- 
quence of  a  divorce  a  vinculo,  obtained  against  him  by  his 
wife  for  his  fault,  for  his  estate  can  never  become  consummate 

by  the  death  of  his  wife,  if  the  woman  whom  he  mar- 
[*142]  ried  cease  *  to  be  wife  during  her  life.    This  has  been 

so  held  in  Connecticut,  Massachusetts,  New  York, 
Indiana,  Vermont,  Kentucky,  and  Delaware,  in  cases  decided 
in  their  courts.^ 

54.  By  the  English  law,  after  the  statute  Westm.  2,  c.  24, 
tenant  by  curtesy  would  forfeit  his  estate  by  making  a  feoff- 
ment of  the  lands.^  And  the  same  was  held  to  be  the  effect  in 
Maine  and  New  Jersey,  of  a  deed  of  conveyance  in  fee.*  But 
it  was  held  in  Pennsylvania  and  New  Hampshire  that  such  a 
deed  would  convey  only  such  estate  as  the  grantor  had,  and 
would  not  operate  as  a  forfeiture.^  So  in  Kentucky,  a  deed 
of  bargain  and  sale  by  a  husband  in  fee,  conveys  only  such  in- 
terest as  he  has  in  the  premises.^  And  in  South  Carolina, 
where  a  husband  conveyed  his  wife's  land  in  fee,  it  was  held 
that  the  grantee  thereby  acquired  the  husband's  rights,  and 
that  she  could  not,  during  the  life  of  her  husband,  recover 
possession  of  the  same,  and  that  she  had  seven  years  after  his 
death  in  which  to  bring  an  action  for  the  same.  So  in  Ten- 
nessee.'^    By  statute  in  New  York,  a  wife  may  defeat  the 

1  Foss  V.  Crisp,  20  Pick.  121 ;  Reese  v.  Waters,  4  Watts  &  S.  145.  But  this 
disability  is  now  done  away  with  in  most  of  the  States.  See  note  on  the  subject, 
chap.  3. 

2  Bishop,  Mar.  &  Div.  §  666.  See  also  1  Greenl.  Cruise,  150 ;  Wheeler  v. 
Hotchkiss,  10  Conn.  225.  See,  as  to  effect  of  divorce,  the  note  at  the  end  of 
chap.  7. 

3  2d  Inst.  309. 

*  French  v.  Rollins,  21  Me.  372  ;  4  Kent,  Com.  84. 

6  McKee  v.  Pfout,  3  Dall.  486  ;  Flagg  v.  Bean,  5  Fost.  (N.  H.)  63  ;  Dennett  v. 
Dennett,  40  N.  H.  505.  For  the  effect  of  such  conveyances  upon  the  estate  of 
the  tenant  by  curtesy,  the  reader  is  referred  to  p.  *  142,  note  5. 

6  Meraman  ;;.  Caldwell,  8  B.  Mon.  32  ;  Miller  v.  Miller,  Meigs,  484.  See  also 
Butterfield  v.  Beall,  8  Ind.  203 ;  Junction  Railroad  v.  Harris,  9  Ind.  184. 

■?  Munneslyn  v.  Munneslyn,  2  Brev.  2 ;  Miller  v.  Miller,  Meigs,  484.  See  also 
Baykin  v.  Rain,  28  Ala.  332. 


CH.  VI.]  ESTATES   BY   CURTESY.  183 

husband's  right  to  curtesj'  in  lands  accruing  to  her  during 
coverture,  by  conveying  them  to  a  third  person.  But  unless 
she  exercises  her  right  during  her  life,  his  right  to  curtesy  at 
common  law  remains.^ 

55.  It  is  hardly  necessary,  after  what  has  been  said,  to  add 
that  tenants  by  curtesy  hold  their  estates  subject  to  the 
duties,  limitations,  and  obligations,  which  attach  to  those  of 
ordinary  tenants  for  life,  for  which  reference  may  be  had  to 
the  chapter  which  treats  of  estates  for  life. 

56.  Upon  the  death  of  the  wife,  the  husband  is  at  once  in 
as  tenant  by  the  curtesy,  without  having  to  resort  to  a  pre- 
liminary form  to  consummate  his  title  to  the  same. 

1  Clark  V.  Clark,  24  Barb.  681. 


184  LAW   OF  REAL   PROPERTY.  [bOOK 


CHAPTER  VII. 

DOWER. 

Sect.  1.  Nature  and  History  of  Dower. 

Sect.  2.  Of  what  a  Widow  is  Dowable. 

Sect.  3.  Requisites  of  Dower. 

Sect.  4.  How  Barred  or  Lost. 

Sect.  5.  How  and  by  whom  Assigned. 

Sect.  6.  Nature  of  the  Interest  and  Estate  of  Dowress. 


SECTION  I. 

NATUEE  AND   EaSTORY   OF   DOWEB. 

1.  Dower  defined. 

2.  History  of  dower. 

3.  Early  regard  for  it. 

4.  Reasons  for  Dower  Act  of  Wm.  IV. 

5.  Dower  in  the  United  States. 

6.  Varieties  of  dower. 

7.  Dower  an  institution  of  law. 

8.  Division  of  the  subject. 

9.  Lex  loci  applied  to  dower. 

10.    Rule  as  to  time  in  respect  to  dower. 

1.  DoTVER  is  the  provision  which  the  law  makes  for  a 
widow  out  of  the  lands  or  tenements  of  her  husband,  for 
her  support  and  the  nurture  of  her  children.^ 

2.  There  seems  to  be  much  uncertaint}^  in  regard  to  its 

origin  and  early  history.  The  word  dost,  indeed,  was 
[*147]  derived  *frora  the  civil  law,  but  signified  dowry,  or 

the  portion  which  the  wife  brought  to  the  husband, 
and  no  such  provision  as  the  common  law  makes  out  of  the 

1  Co.  Lit.  30  a;  2  BI.  Com.  180. 


CH.  VII.  §  1.]  DOWER.  185 

husband's  lands  for  the  wife,  was  known  to  that  code.^ 
Giiterbock,  in  his  comments  upon  Bracton,  holds  that  English 
dower  was  not  a  Roman  institution,  but  "  should  rather  be 
compared  to  the  doarium  (Witthum)  of  the  German  legal 
authorities."  2  From  what  source  the  common  law  derived 
the  institution  of  dower,  the  various  writers  upon  the  sub- 
ject do  not  agree.  From  the  statement  of  Tacitus  that 
among  the  Germans,  dowry  —  dos  —  was  something  bestowed 
by  the  husband  upon  the  wife,^  Mr.  Cruise  assumes  that  the 
custom  of  dower  was  derived  from  the  Germans,  and  thence 
became  well  known  to  the  Saxons,*  from  whom  it  passed  into 
the  common  law.  Blackstone,  on  the  other  hand,  says,  it 
"  seems  to  have  been  unknown  in  the  early  part  of  our  Saxon 
constitution,"  and  suggests  that  "  it  might  be  with  us  the 
relic  of  a  Danish  custom,  dower  having  been  introduced  into 
Denmark  by  Sweyn,  the  father  of  Canute  the  Great."  ^  Sir 
Martin  Wright  maintains  that  it  was  unknown  to  the  early 
Saxon  law,  and  that  it  found  its  way  into  England  by  means 
of  the  Norman  conquest.  Quoting  from  Bacon's  "  History 
of  the  English  Government,"  he  says,  "  We  find  no  footsteps 
of  dower  in  lands  until  the  time  of  the  Normans."  ^  Mr. 
Maine  ascribes  the  existence  of  dower  to  the  influence  and 
exertions  of  the  Church.  After  exacting,  for  two  or  three 
centuries,  an  express  promise  from  the  husband  at  marriage, 
to  endow  his  wife,  it  at  length  succeeded  in  ingrafting  the 
principle  of  dower  on  the  customary  law  of  all  western  Eu- 
rope.'' Mr.  Barrington  inclines  to  believe  that  the  English 
borrowed  the  doctrine  from  the  Goths  and  Swedes.  One 
reason  assigned  by  him  for  the  making  of  such  a  provision  by 
law  was,  that  .wives  had  no  personal  fortune  to  entitle  them 
to  a  jointure  by  the  way  of  bargain  on  their  marriage.  And 
one  reason  why  the  widow  was  to  continue  in  the  capital 
messuage  for  the  term  of  forty  days  after  the  husband's  death, 
was  to  prevent  a  supposititious  child ;  that  being  a  deceit  not 

1  Termes  de  Ley,  280 ;  2  Bl.  Com.  129.  2  Edition  by  Coxe,  135. 

3  "  Dotem  non  uxor  marito  sed  uxori  marifus  offert."     Tac.  De  Mor.  Ger.  18. 
*  1  Cruise,  Dig.  152.  5  2  BI.  Com.  129. 

6  Wright,  Ten.  191 ;  Bacon,  Hist.  Eng.  Gov.  104. 
1  Anc.  Law,  224. 


186  LAW   OF   REAL   PROrERTY.  [bOOK   I. 

imfrequently  practised  in  the  time  of  Magna  Charta.^  What- 
ever its  origin,  it  had  become  so  well  established  and  was  held 
in  so  much  favor  as  early  as  the  reign  of  Henry  III.,  that  ex- 
press provision  was  made  in  the  Magna  Charta  of  the  ninth 
year  of  that  king's  reign,^  for  enforcing  it  in  favor  of  a  widow 
and  for  assigning  it  to  her  without  charge,  and  giving  her  in 
the  mean  time  the  right  to  occupy  the  principal  mansion  of 
her  husband,  if  not  a  castle,  for  the  space  of  forty  days  after 
his  death,  free  of  charge,  unless  she  should  marry  again  within 
that  period.^ 

3.  The  favor  with  which  dower  was,  for  a  long  tune,  re- 
garded in  the  early  history  of  the  common  law,  is  evinced  by 

the  prominent  place  it  holds  among  the  early  writers, 
[*148]   as  well  as  *  among  the  decisions  in  the  Year  Books. 

Bacon,  in  his  treatise  on  Uses,  remarks  that,  "  tenant 
in  dower  is  so  much  favored  as  that  it  is  the  common  by-word 
of  the  law  that  the  law  favoreth  three  things,  —  life,  liberty, 
dower."  4 

4.  In  treating  of  this  regard  for  dower  in  connection  with 
the  changes  in  the  condition  of  property  in  England  which 
led  to  the  act  of  3  and  4  William  IV.  c.  105,  called  the  Dower 
Act,  the  commissioners  on  the  subject  of  the  law  of  real  prop- 
erty refer,  as  an  explanation,  to  the  fact  that  dower  took  its 
rise  before  estates  were  alienable  inter  vivos,  or  devisable  by 
will,  and  when,  practically,  no  general  inconvenience  could 
result  from  appropriating  a  portion  of  the  inheritance  of  a 
deceased  proprietor  for  the  support  of  his  widow,  "  whose 
claims,  in  natural  justice  and  policy,  appear  to  stand  at  least 
on  an  equal  footing  with  the  claims  of  the  heir."  ^  There  had 
been,  however,  for  many  years,  a  growing  disposition  in  that 
kingdom  to  free  the  real  estates  of  its  subjects  from  the  in- 
cumbrance of  dower  which  embarrassed  it  as  a  means  of  con- 
verting it  readily  into  purposes  of  trade  and  commerce.  And 
various  measures  had,  from  time  to  time,  been  resorted  to,  to 
relieve  these  estates  from  this  charge  of  the  common  law.  It 
will  be  proper  to  refer  hereafter  to  some  of  the  expedients 

1  Stat.  9,  10.  2  That  of  John  contained  no  such  provision. 

8  Magna  Charta,  c.  7 ;  2d  Inst.  16.  *  Bacon,  Law  Tracts,  331. 

6  1  Report,  Eng.  Com.  18. 


CH.  VII.  §  1.]  DOWER.  187 

to  which  conveyancers  had  recourse  in  order  to  evade  the 
claims  of  married  women  upon  the  estates  of  their  husbands , 
but  it  is  only  necessary  to  remark,  at  this  time,  that  by  the 
act  above  referred  to,  it  rests  with  the  husband  whether  his 
widow  shall  share  any  part  of  his  real  estate  as  her  dower  or 
not.  This,  however,  is  in  fact  a  change  of  less  practical  im- 
portance than  might  at  first  be  supposed,  for,  as  stated  by  the 
commission  above  mentioned,  by  the  means  referred  to,  the 
law  of  dower  had  come  to  be  in  most  cases  evaded,  and 
the  right  to  dower  existed  beneficially  in  so  few  instances 
that  it  was  of  little  value  considered  as  a  provision  for  widows, 
and  never  calculated  on  as  a  provision  by  females  who  con- 
tracted marriage,  or  by  their  friends.^ 

*5.  In  this  country,  though  the  right  of  dower  has  [*149] 
been  modified  from  time  to  time,  and  is  not  by  any 
means  uniform  through  all  the  States,  it  has  been  regarded 
with  a  good  degree  of  favor,  being  conformed  by  the  laws  of 
the  several  States  to  the  supposed  wants  and  condition  of  their 
citizens.  In  nearly  every  State,  with  the  exception  of  Louisiana, 
Indiana,  and  practically  of  California,  dower  will  be  found  to 
exist  in  some  form,  and  substantially  in  most  of  them,  like  the 
dower  of  the  common  law.*  Previous  to  1853,  a  widow  in 
Iowa  took  one  third  of  her  husband's  lands  in  fee.  Since  that 
time  that  law  as  to  dower  is  restored.^  In  Indiana,  she  has 
one  third  of  her  husband's  land  in  fee,  in  the  place  of  dower.^ 

*  Note.  —  The  earliest  act  upon  the  subject  in  Massachusetts  is  that  of  1641, 
which  gives  to  widows  a  right  of  dower  to  one-third  part  of  such  lands,  tene- 
ments, and  hereditaments  as  the  husband  may  liave  been  seised  of  during  cover- 
ture, excepting  such  as  may  have  been  conveyed  "  by  some  act  or  consent  of 
sucli  wife,  signified  in  writing  under  her  hand,  and  acknowledged  before  some 
niagistrate  or  others  authorized  thereto,  which  shall  bar  her  from  any  right  or 
interest  in  such  estate."  Mass.  Anc.  Chart.  99.  Tliis  ordinance  is  said  to  have 
been  the  origin  of  the  custom  so  univei'sal  in  this  country  of  wives  barring  their 
claim  of  dower  by  joining  in  a  deed  with  their  husbands  of  the  estate  granted. 

1  1  Report,  Eng.  Com.  17. 

•^  Burke  v.  Barron,  8  Iowa,  134  ;  Lucas  v.  Sawyer,  17  Iowa,  519.  Code,  1873, 
p.  421. 

3  Noel  V.  Ewing,  9  Ind.  37 ;  Strong  v.  Clem,  12  Ind.  40.  Stat.  1852,  Gal- 
breath  V.  Gray,  20  Ind.  292 ;  Verry  v.  Robinson,  25  Ind.  17 ;  Gaylord  v.  Dodge, 
31  Ind.  47,  48. 


188  LAW   OP   REAL    PROPERTY.  [bOOK   I. 

In  Missouri,  dower  was  established  hj  law  while  it  was  a  terri- 
tory.i  And  by  the  ordinance  of  1787  it  became  an  incident 
to  property  throughout  the  Nortliwest  Territory.-  By  stat- 
ute a  widow  in  Illinois  may  take  dower  in  one  third  of  the 
real  estate  of  her  husband  ;  "  while  in  California  she  has  one 
half  of  the  common  property  belonging  to  husband  and  wife, 
but  no  dower  in  the  husband's  separate  estate.*  In  Massa- 
chusetts, if  a  husband  dies  intestate  without  issue,  his  widow 
may  have  dower  out  of  his  estate  or  one  half  of  his  estate  for 
life  at  her  election.^ 

6.  To  save  the  necessity  of  explanation  hereafter,  it  may  be 
remarked  that  the  word  "dower,"  both  technically  and  in  a 
popular  sense,  has  reference  to  real  estate  exclusively.^  Used 
in  this  sense,  there  wei-e  five  species  inown  to  the  English 
law,  one  only  of  which,  namely,  that  at  common  law,  is  in  use 
in  this  country.'^  All  the  others,  except  that  "  by  custom," 
have  been  abolished  by  statute  in  England,  after  having  fallen 
into  general  disuse.^*     Before  the  share  of  which  a  widow 

should  be  dowable  was  so  fully  defined  in  the  Magna 
[*150]   Charta  of  Hen.  III.,  *  dower  ad  ostium  ecclesice  was 

principally  in  use,  the  husband,  however,  being  re- 
stricted to  one  third  part  of  his  estate.^  If  no  such  endow- 
ment was  made,  she  might  take  one  third  of  all  the  lands  of 
which  the  husband  was  seised  at  the  time  of  the  espousals. 
And  if  he  had  no  lands  at  the  time  of  espousal,  an  endowment 
of  goods  and  chattels  at  that  time  was  a  bar  to  dower  in  any 

*  Note.  —  It  will  be  enough,  therefore,  to  mention  these  without  any  further 
explanation.  Dower  ad  ostium  ecclesia,  was  the  endowment  by  the  husband  of 
his  wife  at  the  time  of  their  marriage  of  certain  specific  lands.  That  ex  assensu 
patris  was  like  the  last,  except  that  the  endowment  was  of  lands  of  the  father  by 
his  assent.  Dower  cle  la  pins  belle  was  connected  with  military  tenures,  and  be- 
came extinct  upon  the  abolishing  of  these  by  the  statute  12  Charles  II.  c.  24.  Lit. 
§  48 ;  2  Bl.  Com.  132. 

»  Reaume  v.  Chambers,  22  Mo.  36 ;  Wagner's  Stat.  1890,  p.  538 ;  Rev.  Stat. 
1874.  p.  423. 

2  O'Ferrall  v.  Simplot,  4  Iowa,  381. 

8  Sturgis  V.  Ewing,  18  111.  176.  *  Beard  v.  Knox,  5  Cal.  252. 

6  Mass.  Gen.  Stat.  c.  90,  §  15.     Post,  *219,  *221. 

e  Dow  V.  Dow,  36  Me.  211.  ^  Stearns,  Real  Act.  278. 

8  2  Bl.  Com.  135.  »  2  Bl.  Com.  133. 


CH.  YII.  §  1.]  DOWER.  '  189 

lands  he  might  afterwards  acqiure.^  Among  the  species  of 
dower  by  custom  in  use  in  England  in  particular  localities, 
are  those  of  Gavelkind  and  of  Freebench  in  copyhold  lands. 
By  Gavelkind  she  took  half  the  lands  of  the  husband  during 
her  widowhood.^  By  Freebench  she  had  in  some  manors  all 
the  customary  lands  of  the  husband  so  long  as  she  remained 
chaste  and  unmarried.  If  she  married  again  she  forfeited 
these  lands,  but  might  regain  them  by  riding  into  the  Barons' 
Court  upon  a  black  ram,  backwards,  reciting  certain  doggerel 
rhymes,  —  a  sample  of  the  coarse  fun  in  which  the  common 
people  in  England  were  inclined  to  indulge.^ 

7.  This  brief  recurrence  to  the  history  of  this  species  of 
estate  will  serve  to  illustrate  the  remark  of  the  court  in  giving 
judgment  in  a  matter  involving  the  right  of  dower  in  New 
York.  "  It  is  not  the  result  of  contract,  but  a  positive  insti- 
tution of  the  State,  founded  on  reasons  of  policy."  *  And  in 
this  connection  it  may  be  proper  again  to  refer  to  the  language 
of  the  Magna  Charta,  which  in  the  first  place  relieves  the 
widow  from  the  burden  of  fine  and  relief,  to  which  heirs  and 
alienees  were  uniformly  subjected  by  the  feudal  law,  declar- 
ing that  she  shall  give  nothing  for  her  dower.  It  then  gives 
her  the  right  to  tarry  in  the  chief  house  of  her  husband,  if  not 
a  castle,  "  by  forty  days  after  the  death  of  her  husband," 
which  has  since  been  known  as  her  quarantine ;  ^  and  adds, 
"  And  for  her  dower  shall  be  assigned  unto  her  the  third  part 
of  all  the  lands  of  her  husband  which  were  his  during  cover- 
ture, except  she  were  endowed  of  less  at  the  church-door."^ 
So  uniform  has  the  common  law  of  both  countries  been  in  this 
respect,  that  in  popular  phrase  a  widow's  dower  is  called  her 
"  thirds,"  implying  an  interest  to  that  extent  in  the  real  estate 
of  her  husband. 

8,  In  treating  of  the  subject  of  dower,  it  is  proposed  to  con- 
sider—  1.  Of  what  a  widow  is  dowable.  2.  What  are  the 
requisites  to  entitle  her  to  dower.  3.  How  the  right  of  dower 
may  be  lost  or  barred.     4.  How  and  by  whom  dower 

may  be  *  assigned,  and  in  what  manner  its  assignment  [*151] 

1  2  Bl.  Com.  134.  2  Co.  Lit.  Ill  a. 

8  Jac.  Law  Die.  "Free  Bench."  *  Moore  v.  New  York,  4  Seld.  110. 

&  2  Bl.  Com.  135.  6  2  Inst.  16. 


190  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

be  enforced.  5.  The  nature  of  the  interest  and  estate  of  a 
wife  and  widow  in  her  dower  land.  6.  Some  of  the  peculi- 
arities as  to  dower  existing  in  the  several  States. 

9.  It  may  be  proper,  as  a  preliminary  remark,  to  observe 
that  the  law  by  which  the  right  of  dower  in  any  particular - 
case  is  determined,  is  that  of  the  place  where  the  subject- 
matter  of  the  claim  is  situate.  Thus  a  woman  who  is  married 
and  domiciled  in  Louisiana  is  entitled,  upon  the  death  of  her 
husband,  to  dower  in  lands  of  which  he  was  seised  in  Missis- 
sippi, although  in  the  place  of  her  domicil  dower  is  not  recog- 
nized by  law.^  So,  though  a  widow  domiciled  in  Georgia 
could  only  claim  dower  in  such  lands  as  her  husband  died 
seised  of,  she  may  recover  it  in  South  Carolina  in  all  lands  of 
which  he  was  seised  in  the  latter  State  during  coverture.^ 
The  right  of  dower  does  not  result  from  any  contract,  nor  is 
it  a  right  which  is  guarded  by  constitutional  provisions  of  the 
State.  It  is  an  incident  of  the  marriage  relation,  resulting 
from  wedlock,  established  by  positive  institutions  of  the  coun- 
try where  it  is  applied,  so  that  a  widow  is  entitled  to  dower, 
although  the  marriage  was  consummated  abroad,  where  the 
common  law  does  not  obtain.^  And  it  results,  moreover,  from 
wedlock  by  the  operation  of  existing  laws  at  the  time  of  the 
husband's  death.* 

10.  But  though  dower  is  to  be  assigned  according  to  the 
law  in  force  at  the  death  of  the  husband,  that  is  not  alwaj^s  a 
test  of  the  widow's  right  to  be  endowed.  Thus,  for  instance, 
where  land  of  the  husband  was  sold  for  the  payment  of  debts, 
under  a  law  which  cut  off  the  right  of  dower  therein,  and  a 
subsequent  statute  was  enacted  securing  to  a  widow  dower 
out  of  all  the  lands  of  which  her  husband  was  seised  during 
coverture,  it  was  held  that  it  would  not  extend  to  lands  pre- 
viously sold  during  coverture  under  the  then  exist- 

[*152]  ing  law.^     So  where  a  statute  *  liad  changed  the  com- 
mon law  by  restricting  a  widow's  dower  to  lands  of 

1  Duncan  v.  Dick,  Walker,  281  ;  Story,  Confl.  Laws,  §  448 ;  2  Kent,  Com. 
183  n. 

2  Lamar  v.  Scott,  3  Strob.  562.  »  Moore  v.  New  York,  4  Seld.  110. 
4  Melizet's  Appeal,  17  Penn.  St.  455;  Lucas  v.  Sawyer,  17  Iowa,  517;  Ran- 
dall V.  Kxeiger,  2  Dillon,  Rep.  447. 

s  Kennerly  v.  Missouri  Ins.  Co.,  11  Mo.  204. 


CH.  VII.  §  1.]  DOWER.  191 

which  her  husband  died  seised,  but  saved  all  rights  which  had 
already  attached,  a  husband  during  coverture  had  previously 
sold  an  estate  by  deed  in  which  his  wife  did  not  join,  and  they 
had  removed  from  the  State,  it  was  held  that  she  had  a  right 
to  claim  dower  in  this  estate.^  Upon  the  same  principle, 
where  a  statute  gave  dower  to  a  wife  upon  her  divorce  from 
her  husband  for  his  misconduct,  it  was  held  not  to  retroact  so 
as  to  ajffect  lands  conveyed  by  him  before  such  statute  was 
passed.2  So  where  the  statute  of  the  State  excluded  a  wife 
from  dower  who  had  been  divorced  for  her  "  aofSfression,"  it 
was  held  that  a  divorce  granted  in  another  State,  though  for 
such  cause,  did  not  operate  to  bar  her  claim  in  the  former 
State.^  If  after  the  death  of  the  husband  and  before  judg- 
ment in  an  action  of  dower,  the  law  is  changed,  her  rights  in 
respect  to  the  same  are  determined  by  the  law  as  it  was  at 
her  husband's  death.^  And  the  same  rule  applies  where  the 
husband  has  conveyed  the  land  during  coverture  ;  the  l?iw  at 
the  time  of  such  conveyance  fixes  the  wife's  right  to  dower  in 
the  same.^  A  question  has  been  raised  in  several  of  the 
States,  how  far  the  legislature  can,  by  legislative  action,  affect 
an  inchoate  right  of  dower  or  curtesy,  during  the  coverture 
of  the  parties.  The  question  has  been  presented  in  two  forms. 
In  one,  is  involved  the  right  of  dissolving  a  particular  marriage 
by  such  an  act,  and  thus  defeating  its  incidents  of  dower  and 
curtesy.  In  the  other,  the  right  by  general  law  to  change  or 
abrogate  these  as  rights  of  property  without  directly  acting 
upon  the  status  of  marriage.  The  weight  of  authority  upon 
the  latter  point  appears  to  be  decidedly  in  favor  of  such  a 
power  in  the  legislature,  and  that  it  is  the  law,  as  it  exists  at 
the  time  of  the  husband's  or  wife's  death,  which  determines 
the  survivor's  right  to  dower,  or  curtesy.  This  seems  to  be 
the  recognized  law  in  New  York,  Pennsylvania,  Iowa,  New 
Hampshire,  Ohio,  Maine,  Mississippi,  and  Missouri,  although 
the  power  of  dissolving  marriages  by  legislative  acts  is  denied  ; 

1  Johnson  v.  Vandyke,  6  McLean,  422.    This  was  a  case  arising  in  M-icliigau. 

2  M'Cafferty  v.  M'Caflferty,  8  Blackf.  218;  Comly  v.  Strader,  1  Smith  (Ind.), 
75;  8.  c.  llnd.  134. 

3  Mansfield  v.  M'Intyre,  10  Ohio,  27.  *  Burke  v.  Barron,  8  Iowa,  1G5. 
5  O'Ferrall  v.  Simplot,  4  Iowa,  881 ;  Young  v.  Wolcott,  1  Iowa,  174.     But 

see  Strong  t'.  Clem,  12  Ind.  37. 


192  LAW  OF  REAL  PROPERTY.  [BOOK  L 

Connecticut,  where  legislative  divorces  are  held  valid,  and 
Kentucky,  where  a  like  doctrine  is  held,  while  the  courts  of 
Illinois  hold  such  a  right  to  b^  a  vested  one,  and  not  subject 
to  be  defeated  by  an  act  of  legislation.  And,  without  decid- 
ing the  main  question,  the  courts  of  Florida  hold  marriage  a 
contract  which  the  legislature  may  not  impair.^ 

10  a.  In  a  case  in  Minnesota,  an  estate  of  which  husband 
was  seised  was  conveyed  by  a  power  of  attorney,  in  which  the 
wife  joined,  in  1855.  Such  power  being  inoperative,  so  far 
as  the  wife  was  concerned,  an  act  of  the  legislature  was  passed 
in  1857,  declaiing  all  deeds  heretofore  or  hereafter  made  by 
husband  and  wife  under  a  joint  power  of  attornej'',  good.  In 
1869  the  husband  died.  It  was  held  that  both  husband  and 
wife  being  living  when  the  act  was  passed,  and  her  right  of 
dower  being  then  inchoate,  it  had  the  effect  to  bar  her  right. 
The  language  of  Dillon,  J.  (U.  S.  Circuit  Court),  is,  "  While 
the  i-ight  remains  inchoate,  it  is,  as  resj)ects  the  wife,  under 
the  absolute  control  of  the  legislature,  which  may,  by  general 
enactment,  change,  abridge,  or  even  destroy  it,  as  its  judg- 
ment may  dictate."  ^  In  Massachusetts  the  courts  regard  the 
inchoate  right  of  dower  in  a  married  woman  in  her  husband's 
lands  as  an  interest  in  the  property  rather  than  as  a  mere 
possibility,  and  entertain  strong  doubts  if  it  may  be  cut  off 
while  inchoate,  by  an  act  of  the  legislature.^  A  recent  case 
in  Iowa  substantially  adopted  the  doctrine  of  Dillon,  J.,  as  to 
the  light  of  a  wife  to  be  endowed  of  the  lands  of  her  husband, 
so  long  as  it  is  inchoate,  being  susceptible  of  being  enlarged, 
abridged,  or  entirely  taken  away  by  statute,  but  restricted  it 
to  the  time  of  alienation  of  the  land  by  the  husband.  The 
marriage  took  place  in  1859,  when,  by  statute,  the  wife  took 

1  Thurber  t>.  Townsend,  22  N.  Y.  517;  Moore  v.  Mayor,  &c.,  4  Seld.  114; 
Melizet's  Appeal,  17  Penn.  St.  455  ;  Lucas  v.  Sawyer,  17  Iowa,  517  ;  Merrill  i'. 
Sherburne,  1  N.  H.  214;  Weaver  v.  Gregg,  6  Oliio  St.  550;  16  Me.  481  ;  Bar- 
bour V.  Barbour,  46  Me.  9  ;  Magee  v.  Young,  40  Mis.s.  164,  171 ;  State  v.  Fry,  4 
Mo.  153 ;  Bryson  v.  Campbell,  12  Mo.  498 ;  Starr  v.  Pease,  8  Conn.  541 ;  Ma- 
guire  V.  Maguire,  7  Dana,  184 ;  Russell  v.  Rumsey,  35  111.  372,  373 ;  Ponder  v. 
Graliam,  4  Flor.  24. 

2  Randall  v.  Kreiger,  2  Dillon,  Rep.  U.  S.  C.  C.  444,  447.  The  judge  cites 
Lucas  y.  Sawyer,  17  Iowa,  517;  Satterlee  v.  Matthewson,  2  Pet.  380;  Watson  v. 
Mercer,  8  Pet.  88. 

3  Dunn  V.  Sargent,  101  Mass.  340. 


CH.  VII.  §  2.]  DOWER.  1  193 

what  would  be  dower  at  common  law.  Soon  after  the  mar- 
riage, the  husband  conveyed-  the  land,  but  the  wife  did  not 
join  in  the  conveyance.  In  1862  the  legislature  changed  the 
law,  giving  widows  a  fee  in  their  dower  lands,  instead  of  a 
life  estate.  The  husband  died  in  1870,  and  the  court  held 
that  she  was  entitled  to  dower  as  the  law  was  in  1859,  when 
the  land  was  aliened  by  the  husband,  and  not  under  the  law 
of  1862.1 


SECTION  II. 
OF   WHAT  A  WIDOW   IS   DOWABLE. 

1.  Dower  in  lands,  tenements,  &c. 

2.  Must  be  of  estates  of  inheritance. 

3.  Wlien  an  exception  in  estates  for  years. 

4.  Must  be  estates  which  her  issue  could  inherit. 

5.  Inheritance  must  be  entire. 

6.  Reversions  and  remainders. 

7.  Dower  in  case  of  contingent  remainder. 

8.  Dower  after  a  possibility. 

9.  Dower  in  estates  in  joint  tenancy. 

10.  Estates  in  common. 

11.  Estates  exchanged. 

12.  Partnership  estates. 

13.  Equitable  estates  in  England. 

14.  No  dower  in  trusts. 

15.  No  dower  in  mortgages. 

16.  Dower  in  equitable  estates  in  United  States. 

17.  Equities  of  redemption. 

18.  Dower  in  moneys. 

19.  Estates  subject  to  liens. 

20.  Estates  subject  to  judgments. 

21.  Dower  in  mines. 

22.  Shares  in  corporations. 

23.  Wild  lands. 

24.  Incorporeal  hereditaments. 

25.  Crops. 

1.  In  the  first  place,  by  the  common  law  the  widow  is 
dowable  of  all  lands,  tenements,  or  hereditaments,  corporeal 
and  incorporeal,  of  which  the  husband  may  have  been  seised 
in  fee  or  in  tail  during  coverture.^ 

1  Moore  v.  Kent,  37  Iowa,  20;  Same  v.  Hutchins,  7  West.  Jurist,  491. 

2  2  Bl.  Com.  131. 

VOL.    I.  13 


194  LAW   OP   REAL   PROPERTY.  [BOOK    I. 

2.  The  estate  of  the  husband  in  these  must  have  Leen  one 
of  inheritance,  for,  as  hers  is  a  mere  continuance  of  the  estate 
of  her  husband,  if  his  was  less  than  one  of  inheritance  it  can- 
not extend  beyond  his  own  Hfe.^  Thus  where  the  donee  in 
tail  of  an  estate  is,  by  statute,  made  tenant  for  life  with  a  fee- 
simple  in  the  heirs  of  his  body,  his  wife  cannot  claim  dower.^ 

And  this  is  true  even  though  he  be  seised  of  an  estate 
[*153]  fer  autre  vie^  *  and  dies  before  the  cestui  que  vie.^ 

The  estate  in  such  a  case  became  at  common  law  a 
kind  of  derelict  to  be  seized  upon  by  the  first  occupant  who 
chose  to  appropriate  it,  since,  being  a  freehold,  it  would  not 
go  to  the  executors  of  the  tenant,  and  not  being  one  of  in- 
heritance it  did  not  go  to  his  heirs.  Nor  does  it  make  any 
difference  in  respect  of  dower  that  by  the  statute  29  Car.  II. 
such  estate  goes  to  the  heirs  of  the  tenant  as  special  occuj^ant. 
Different  provisions  are  made  in  different  States  in  respect  to 
it ;  as  in  New  York,  if  it  is  not  devised  by  the  tenant  it  goes 
to  his  executors.  In  Massachusetts,  it  descends  like  estates 
in  fee* 

3.  If,  therefore,  the  estate  of  the  husband  be  a  term  for 
years,  his  wife  cannot  claim  dower  out  of  it  at  common  law, 
no  matter  how  long  it  is  to  continue,  nor  though  it  be  renew- 
able forever.  Park  mentions  the  case  of  a  lease  for  two 
thousand  years.^  A  case  in  the  court  of  Mississippi  was  one 
for  ninety-nine  years.^  One  in  Maryland  was  for  ninety-nine 
years,  renewable  forever.  And  it  was  held  that  it  would 
make  no  difference  that  the  lease  contained  a  covenant  to 
convey  the  estate  in  fee  to  the  lessee  upon  request,  since  such 
an  estate  did  not  come  within  the  statute  of  that  State  giving 
dower  out  of  lands  held  by  equitable  titles.'^  In  Massachu- 
setts, terms  for  a  hundred  or  more  years  are  clothed  with  the 

•  2  Crabb,  Real  Prop.  132 ;  Park,  Dow.  47.  See  Gorham  v.  Daniels,  23  Vt. 
611,  a  case  of  dower  in  a  husband's  life-estate.  Also,  Mass.  Gen.  Stat.  c.  90,  §  20, 
where  dower  may  be  had  in  a  long  term  of  years. 

2  Burris  v.  Page,  12  Mo.  358. 

3  Park,  Dow.  48 ;  Gillis  v.  Brown,  5  Cow.  388 ;  Fisher  v.  Grimes,  1  S.  &  M. 
Ch.  107. 

*  Gen.  Stat.  Mass.  18G0,  c.  92,  §  1.     See  p.  *94,  n.  4. 

6  Park,  Dow.  47.  «  Ware  v.  Washington,  6  S.  &  M.  737. 

7  Spangler  v.  Stanler,  1  Md.  Ch.  Dec.  36. 


CH.  VII.  §  2.]  DOWER.  195 

incidents  of  fee-simple  estates,  including  the  right  of  dower, 
so  long  as  fifty  j^ears  of  the  term  remain.^  But  in  Connecti- 
cut, an  estate  for  nine  hundred  and  ninety-nine  years  in  a 
husband  does  not  give  his  wife  a  right  of  dower  therein,^  al- 
though in  another  case,  for  the  purposes  of  taxation,  such  an 
estate  had  been  treated  as  a  fee.^ 

4.  The  inheritance,  moreover,  must  be  such  an  one  as  the 
issue  of  the  wife  might  by  possibihty  take  by  descent.*  This 
relates  to  the  question  whether  her  issue  could  inherit,  if  she 
had  any,  and  not  to  her  physical  capacity  to  bear  children. 
As  where  an  estate  was  given  to  A  and  the  heirs  of  his  body 
begotten  of  his  wife  B.  Here,  according  to  Coke, 
though  B  were  *  an  hundred,  and  A  but  seven  years  [*154] 
old,  B  would  be  entitled  to  dower,  whereas,  if  B  died 

and  A  married  again,  his  second  wife,  though  she  may  have 
borne  him  children,  could  not  claim  dower. ^ 

5.  The  inheritance,  besides,  must  be  an  entire  one,  and  one 
of  which  the  husband  may  have  corporeal  seisin,  or  a  right  to 
such  seisin  during  coverture.^ 

6.  If,  therefore,  the  husband  have  only  a  reversion  or  re- 
mainder after  a  freehold  estate  in  another,  though  it  be  in  fee, 
it  will  not  give  his  wife  a  right  of  dower  therein,  unless  by 
the  death  of  the  intermediate  freeholder,  or  a  surrender  of  his 
estate  to  the  husband,  the  inheritance  become  entire  in  the 
husband  during  coverture.'^  And  if  the  husband  sell  his  re- 
version during  the  continuance  of  the  particular  estate  for  life, 
his  wife  thereby  loses  all  claim  to  the  same.^  But  if  the  in- 
termediate estate,  subject  to  which  the  husband  has  a  rever- 

1  Mass.  Gen.  Stat.  1860,  c.  90,  §  20.        2  Goodwin  v.  Goodwin,  33  Conn.  314. 
8  Brainard  v.  Colchester,  31  Conn.  411. 

*  Lit.  §  53.  5  Co.  Lit.  40  a  ;  2  Bl.  Com.  131 ;  Tud.  Cas.  45. 
6  Tud.  Cas.  43 ;  Apple  v.  Apple,  1  Head,  348. 

■^  Tud.  Cas.  43 ;  Perkins,  §  337  ;  Park,  Dow.  57,  74,  76  ;  2  Crabb,  Real  Prop. 
132,  1.58;  1  Atkinson,  Conv.  2-56;  4  Kent,  Com.  39;  Duncomb  v.  Duncomb,  ^ 
Lev.  437  ;  Eldredge  v.  Forrestal,  7  Mass.  253 ;  Shoemaker  v.  Walker,  2  S.  &  R. 
556  ;  Dunham  v.  Osborn,  1  Paige,  Ch.  634  ;  Robison  t-.'Codman,  1  Sumn.  130, 
Moore  v.  Esty,  5  N.  H.  479;  Otis  r.  Parshley,  10  N.  H.  403  ;  Green  v.  Putnam, 
1  Barb.  500  ;  Arnold  v.  Arnold,  8  B.  Mon.  202;  Fisk  v.  Eastman,  5  N.  H.  240; 
Beardslee  v.  Beardslee.  5  Barb.  324  ;  Durando  v.  Durando,  23  N.  Y.  331 ;  Brooks 
V.  Everett,  13  Allen,  458. 

*  Apple  V.  Apple,  1  Head,  348 ;  Gardner  i'.  Greene,  5  R.  I.  104. 


106  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

sion  or  remainder  in  fee,  be  a  term  for  years,  the  wife  will  be 
entitled  to  dower  in  the  fee.^  And  where  there  was  a  devise 
to  executors  to  j)ay  debts,  and  after  to  the  testator's  son  in 
tail,  it  was  held  that  the  devise  to  the  executors  was  of  a 
chattel  interest,  and  that  the  widow  of  the  son  was  entitled 
to  dower  subject  to  the  payment  of  the  testator's  debt.^  Nor 
will  it  make  any  difference  with  regard  to  a  widow's  right  of 
dower  that  the  husband,  before  marriage,  converted,  by  his 
own  act,  a  present  estate  in  fee  into  one  for  life  or  into  a  re- 
version. She  could  not  claim  dower  though  the  deed  of  tlie 
husband  had  never  been  recorded.^  If  the  husband  is  seised 
of  a  life  estate  in  lands  and  acquire  the  immediate  reversion 

or  remainder  in  fee  expectant  upon  its  determination, 
[*lo5]   *  they  will,  upon  a  familiar  principle  of  law  that  a 

greater  will  merge  a  less  estate  if  they  unite  in  one 
person  hy  the  same  right  at  the  same  time,  become  one  entire 
estate  of  inheritance,  and  consequently  his  wife  would  be  en- 
titled to  dower  out  of  it  if  she  survive  him.* 

7.  If  now  there  were  interposed  between  this  life  estate  and 
reversion  or  remainder,  a  contingent  remainder,  as,  for  in- 
stance, estate  to  A  for  life,  remainder  to  the  oldest  son  of  B 
in  fee,  who  has  no  son  yet  born,  remainder  to  A  in  fee,  the 
contingent  remainder  in  B  would  be  defeated  by  such  merger, 
because  it  is  a  j^nnciple  of  the  common  law  that  if  the  particu- 
lar or  previous  estate  of  freehold  on  which  the  contingent  re- 
mainder depends,  is  destroyed  or  determined  before  such 
remainder  has  become  vested,  it  fails  for  want  of  support,  and 
is  consequently  defeated,  and  the  life  estate,  in  the  supposed 
case,  is  swallowed  up  and  lost  in  the  remainder  in  fee,  and 
the  reason  is,  that  a  contingent  remainder  is  not  an  estate. 
The  consequence  in  such  a  case  would  be,  that  the  widow  of 
such  tenant  for  life  would  be  entitled  to  dower  for  the  reasons 
above  stated.^     Though  the  rule  is  as  above  stated,  there  is 

1  2  Cral.b,  Real  Prop.  133,  158;  Park,  Dow.  77;  Bates  v.  Bates,  1  Ld.  Raym. 
826. 

2  Ilitchens  v.  Hitchens,  2  Vern.  403  ;  Perkins,  §  335 ;  2  Crabb,  Real  Prop.  150  ; 
Tud.  Cas.  43. 

8  Blood  V.  Blood,  23  Pick.  80.  *  Beardslee  v.  Beardslee,  5  Barb.  332. 

5  Wms.  Real  Prop.  235;  Hooker  v.  Hooker,  Cas.  temp.  Hardw.  13;  Purefoy 
V.  Rogers,  2  Saund.  380. 


CH.  VII.   §  2.]  DOWER.  197 

this  exceptioii,  if  the  several  interests,  namely,  the  life  estate, 
the  contingent  remainder,  and  the  remainder  or  reversion  in 
fee  be  created  or  raised  bv  the  same  act,  deed,  or  devise,  the 
law  will  not,  by  applying  the  technical  rule  of  merger,  allow 
the  contingent  remainder  to  be  destroyed  by  the  life  estate 
and  remainder  being  united  in  one  person.  But  whenever  it 
vests  by  the  contingency  happening,  which  gives  it  vitality  as 
an  estate,  the  life  estate  and  remainder  will  open  and  let  it  in. 
Thus,  suppose  A  by  will  devises  to  his  son  and  heir  an  estate 
for  life,  with  a  contingent  remainder  to  the  heirs  of  B  in  fee, 
and  either  expressly  devises  the  remainder  to  his  son  or  makes 
no  disposition  of  it  and  it  descends  as  a  reversion  to  his  son  as 
heir.  Here  the  son  has  a  life  estate  and  a  reversion  or  a  re- 
mainder in  fee  without  any  estate  interposed,  and  if  he  had 
acquired  it  Vy  grant  or  descent  from  some  one  else,  it 
*  would  have  merged  the  life-estate,  extinguished  the  [*156] 
contingent  remainder,  and  given  his  wife  dower.  But 
as  he  takes  under  the  same  will  which  creates  the  contingent 
remainder,  he  shall  not  be  at  libert}-  to  give  effect  to  the  testa- 
tor's intention,  in  one  part,  and  defeat  it  in  another,  and  mer- 
ger will  not  take  place,  and  consequently  his  wife  cannot 
claim  dower.i  When,  therefore,  as  in  the  last  case,  the  con- 
tingent remainder  is  not  defeated  by  law,  its  interposition 
between  the  life  estate  and  reversion  prevents  the  inheritance 
in  the  husband  being  an  entire  one,  which  is  necessary  in 
order  to  give  dower.^*     If,  however,  the  estate  interposed 

*NoTE. — Mr.  Park,  however,  intimates  that  in  such  case  there  would  be 
sucli  a  union  between  the  life-estate  and  reversion  as  to  give  the  wife  of  the 
holder  dower  until  the  contingent  remainder  vests,  and  the  life-estate  and  rever- 
sion open  to  let  it  in.  Park,  Dow.  72.  And  other  writers  agree  with  Mr.  Park 
in  the  views  he  suggests.  2  Roper,  Hus.  &  Wife,  362-365 ;  2  Crabb,  Real  Prop. 
160  ;  1  Atkinson,  Conv.  256  ;  Tud.  Cas.  43  But  much  of  the  nice  speculation 
upon  the  extinction  of  contingent  remainders  by  merger  in  similar  cases,  is  done 
away  with  in  England  by  Stat.  8  &  9  Vict.  c.  106,  §  8,  saving  such  remainder 
from  being  defeated  by  the  determination  of  the  particular  estate  on  which  it 
depends  before  it  has  vested.  Wms.  Real  Prop.  233.  And  such  are  tlie  statutes 
of  Massachusetts,  Maine,  New  York,  Indiana,  and  Missouri.    Id.  note  by  Rawle. 

'  Hooker  v.  Hooker,  Cas.  temp.  Hardw.  13;  s.  c.  2  Barnard.  200;  Id.  380; 
Plunket  V.  Holmes,  T.  Raym.  30  ;  Lewis   Bowles'  case,  11  Rep.  80;  Park,  Dow. 
65-70 ;  Fearne,  Cent.  Rem.  348,  344 ;  Crump  v.  Norwood,  7  Taunt.  862 ;  Tud. 
Cas.  43. 
.  ^  1  Atkinson,  Conv.  256. 


198  LAW    OF   REAL   PROPERTY.  [BOOK    I. 

between  the  present  estate  and  reversion  is  bufe  a  chattel  in- 
terest, it  would  not  affect  the  right  of  dower  in  the  wife  of 
him  Avho  has  the  interest,  except  that  it  might  postpone  her 
enjoyment  of  it  until  the  expiration  of  this  interposed  term.^ 

8.  The  foregoing  positions  are  in  harmony  with  the  doctrine 
that  the  interposition  of  a.  possibility,  not  intending  thereby 
what  is  understood  by  the  law  to  be  a  condition  that  the  present 
estate  of  the  husband  should  be  prevented  by  the  terms  of  its 
limitation  from  becoming  an  estate  of  inheritance,  defeats  the 

right  of  dower  in  his  wife,  so  long  as  that  possibility 
[*15T]   *  exists.     Thus,  though  an  estate  in  joint  tenancy  be, 

in  terms,  one  of  inheritance  in  each  of  the  joint  tenants, 
yet  the  possibility,  so  long  as  the  joint  ownership  subsists,  that 
the  present  estate  of  each  may  be  completely  defeated  by  his 
dying  in  the  lifetime  of  the  other,  prevents  the  right  of  dower 
attaching  in  the  wife  of  either  except  ihe  actual  survivor. ^ 
So  where  the  tenant  for  life  leases  his  estate  to  the  remainder- 
man in  fee  for  the  life  of  the  lessee,  the  possibility  that  the 
lessor  may  survive  the  lessee,  and  thus  have  a  reversion  in  fact 
after  the  death  of  the  lessee,  prevents  such  a  union  or  entu-ety 
of  the  inheritance  and  freehold  in  the  remainder-man  as  to 
give  his  wife  dower.^  And  perhaps  a  still  stronger  case  is 
reported  in  Levinz  ;  W.  D.  was  tenant  for  life,  remainder  to 
J.  S.  and  his  heirs  for  the  life  of  W.  D.,  remainder  in  tail  to 
W.  D.  It  was  held  that  the  possibility  that  W.  D.  might 
forfeit  his  life-estate,  and  the  remainder  to  J.  S.  take  effect, 
so  far  interposed  between  the  life-estate  in  W.  D.  and  tlie  in- 
heritance in  him  in  tail  as  to  prevent  his  wife  from  claiming 
dower,  he  having  died  in  the  life  of  J.  S.^  It  should,  however, 
be  stated  that  Mr.  Fearne,  in  the  above  case,  regards  the 
interest  of  J.  S.  as  an  intervening  vested  estate  and  not  a 
possibility.^ 

9.  From  the  nature  of  the  estate  of  joint-tenants,  no  right  of 
dower  attaches  in  favor  of  either  of  the  tenants  which  his  wife 

1  1  Roper,  Hus.  &  Wife,  361  ;  Bates  v.  Bates,  Ld.  Raym.  326 ;  Perkins,  §  835  ; 
Hitchens  v.  Hitcliens,  2  Vern.  403. 

2  Park,  Dow.  72.  8  Park,  Dow.  58 ;  2  Rolle,  Abr.  497, 

*  Duncomb  v.  Duncomb,  3  Lev.  437. 

*  1  Atkinson,  Conv.  256;  Park,  Dow.  78.  ^  Teariie,  Cont.  Rem.  349. 


CH.  VII.  §  2.]  DOWER.  199 

can  enforce,  unless  her  husband  survives  the  others.^  In  some 
of  the  United  States  the  principle  of  survivorship  among 
joint-tenants  is  abolished  by  statute,  and  consequently  this 
disability  of  being  endowed  is  removed  on  the  part  of  their 
wives.2  * 

*  10.  The  estate  of  a  tenant  in  common  is  subject  to  [*158] 
dower  as  if  held  in  severalty,  but  it  will  be  set  off  in 
common,  unless  partition  be  made  during  the  life  of  the  hus- 
band between  the  tenants,  in  which  case  the  dower  of  each 
tenant's  wife  is  limited  to  the  portion  set  apart  to  him.^  The 
wife  of  a  tenant  in  common  holds  her  inchoate  right  of  dower 
so  completely  subject  to  the  incidents  of  such  an  estate,  that 
she  not  only  takes  her  dower  out  of  such  part  only  of  the  com- 
mon estate  as  shall  have  been  set  to  her  husband  in  partition, 
but  if,  b}'  law,  the  entire  estate  should  be  sold  in  order  to  effect 
a  partition,  she  loses  by  such  sale  all  claim  to  the  land,  although 
no  party  to  such  proceeding.  But,  as  will  be  shown  hereafter, 
she  is,  in  some  cases,  allowed  in  equity  to  share  in  the  proceeds 
of  such  sale* 

11.  Where  a  husband  exchanges  lands,  using  the  term  in 
its  strict  technical  meaning,^  his  wife  may  have  dower  in  either 
of  the  estates,  but  she  cannot  claim  it  in  both,  though  the 
husband  has  been  seised  of  both  during  coverture.^  In  this 
country  the  doctrine  of  exchanges  of  lands  has  prevailed  to  but 
a  limited  extent.     It  is  recognized  by  the  statutes  of  New 

*NoTE. — Upon  this  doctrine  of  joint  tenancy,  were  based  several  of  the 
devices  formerly  resorted  to  in  order  to  prevent  the  right  of  dower  attaching 
upon  lands  when  purchased.     Tud.  Cas.  46.  • 

1  Park,  Dow.  88  ;  Co.  Lit.  37  b ;  Mayburry  v.  Brien,  15  Pet.  21 ;  2  Crabb, 
Eeal  Prop.  134  ;  Broughton  v.  Randall,  Cro.  Eliz.  503. 

2  In  Nortii  Carolina,  Weir  v.  Tate,  4  Ired.  Eq.  264  ;  South  Carolina,  Reed  v. 
Kennedy,  2  Strob.  67  ;  Kentucky,  Davis  v.  Logan,  9  Dana,  185.  See  Rawle's 
note  to  Wms  Real  Prop.  132.     See  note  to  Joint  Tenanc}',  post. 

3  Lit.  §  44  ;  Perkins,  §  310 ;  Park,  Dow.  42  ;  Tud.  Cas.  46 ;  Reynard  i;.  Spence, 
4  Beav.  103 ;  Potter  v.  Wheeler,  13  Mass.  504 ;  Wilkinson  v.  Parish,  3  Paige, 
Ch.  653;  Totten  v.  Stuyvesant,  3  Edw.  Ch.  500;  Davis  v.  Bartholomew,  3  lud. 
485  ;  Lloyd  v.  Conover,  1  Dutch.  48,  52. 

*  Lee  V.  Lindell,  22  Mo.  202.  See  also  Warren  i;.  Twilley,  10  Md.  39 ;  Wea- 
ver V.  Gregg,  6  Ohio  St.  517. 

5  See  Termes  de  Ley,  319 ;  2  Bl.  Com.  323. 

6  Perkins,  §  319 ;  Co.  Lit.  31  b. 


200  LAW  OF  REAL  PROPERTY.  [bOOK  L 

York,  Kentucky,  Wisconsin,  and  Arkansas,^  but  it  is  limited 
to  cases  of  exchanges  of  equal  interests.  If  they  are  unequal 
the  case  comes  within  the  ordinary  transfers  of  real  estate,  and 
the  rights  of  dower  attach  accordingly.^  So  it  has  been  held 
in  Maine,  that  if  two  tenants  in  common  divide  their  estates  by 
simply  executing  mutual  releases,  the  wife  of  one  of  them  shall 
not  take  dower  in  both  parcels.^  But  if  the  exchange  was  of 
unequal  parts,  one  tenant  paying  the  difference  in  value  to  the 
other,  it  takes  the  character  of  an  ordinary  transfer  of  lands, 
and  the  widow  may  claim  dower  in  both  parcels.*  And  it  was 
held  in  New  Hampshire  that  where  the  owners  of  lands  agreed 
to  exchange  lands,  which  was  done  by  each  executing  to  the 
other  a  deed  of  his  land  in  usual  form,  the  wives  might  claim 
dower  in  both  parcels.^ 

12.  Whether  the  widow  of  a  deceased  partner  shall  be  en- 
titled to  dower  in  lands  purchased  and  held  by  the 
[*159]  partners,  has  *  frequently  been  discussed,  and  it  is  not 
easy  to  reconcile  all  the  cases,  especially  the  early 
ones,  "with  the  law  as  now  understood,  nor  will  it  be  attempted 
here.^  Though  it  may  sometimes  depend  upon  the  character 
which  the  parties  intend  to  give  to  lands  held  by  them  for  their 
joint  and  mutual  benefit,  yet  it  may  be  laid  down  as  a  general 
proposition,  that  if  real  estate  is  purchased  by  two  or  more 
partners,  and  paid  for  out  of  partnership  funds,  and  held  for 
partnership  purposes,  though  it  will  be  regarded  in  law  as  held 
by  the  several  partners  as  tenants  in  common,  yet  in  equity  it 
is  so  far  regarded  in  the  light  of  personalty  as  to  be  subject 
under  an  implied  trust,  to  be  sold  and  applied  if  necessary  for 
the  payment  of  the  par  ership  debts.  Nor  can  the  widow  of 
one  of  such  partners  claim  dower  out  of  any  j)art  of  such 
estate,  except  such  as  may  not  be  required  for  the  payment  of 

1  Stevens  v.  Smith,  4  J.  J.  Marsh.  64.  In  New  York,  Illinois,  Wisconsin, 
and  Oregon,  if  she  does  not  elect  within  one  year  to  take  dower  in  the  lands 
given  in  exchange,  she  is  deemed  to  have  elected  to  take  her  dower  in  those  re- 
ceived in  exchange  ;  1  Stat,  at  Large,  p.  691  ;  111.  Eev.  St.  1874,  p.  42.5;  Wis.  R. 
S.  1858,  c.  89,  §  2;  Oregon,  Sts.  1855,  p.  405.  And  see  Minnesota,  Stat.  1866,  p, 
360 ;  Arkansas  Dig.  1858,  Ch.  60,  §  3. 

2  Wilcox  V.  Randall,  7  Barb.  633.  »  Mosher  v.  Mosher,  32  Me.  412. 
4  Id.  5  Cass  V.  Thompson,  1  N.  H.  65. 
^  See  Sumner  v.  Hampson,  8  Ham.  328. 


CH.  VII.  §  2.]  DOWER.  201 

the  partnership  debts.  Of  that  she  may  claim  her  dower  both 
at  law  and  in  equity.^  It  is,  indeed,  intimated  in  one  case 
above  cited, ^  that  the  character  of  personalty  may  be  stamped 
upon  real  estate  held  by  a  copartnership  by  an  express  or 
implied  agreement  indicating  such  intention.  But  this  could 
only  be  done  in  equit3^^  And  where  land  was  bought  by 
several  for  purposes  of  speculation,  and  the  title  taken  in  the 
name  of  one  as  trustee  for  all,  with  an  agreement  that  it  should 
be  sold  and  the  proceeds  divided,  the  court  regarded  it  as 
personalty,  and,  upon  the  death  of  one  of  the  cestuis  que  trusty 
held  that  it  did  not  descend  to  heirs  or  give  his  widow  a  claim 
of  dower.*  Although  it  would  seem  that  without  such 
agreement  the  widow  of  the  cestui  que  trust  would  be  [*160] 
entitled  to  dower  in  the  estate  so  held.^  The  taking 
the  title  in  the  name  of  one  of  several  copartners  does  not 
seem  to  make  any  difference  in  this  respect,  unless,  as  was  done 
in  one  case,  the  j^artner  so  holding  the  title,  had  by  agreement, 
been  charged  by  the  partnership  as  debtor  for  the  purchase- 
money.^  But  it  is  only  when  and  so  long  as  they  constitute  a 
part  of  the  partnership  property  that  lands  are  exempt  from 
the  claim  of  dower,  for  where  two  parties  engage  in  buying 
and  selling  lands  and  town  lots,  taking  and  giving  deeds  as 
tenants  in  common,  and  lands  were  sold  accordingly  in  the  life- 
time of  both  partners,  it  was  held  that  by  such  sale  they  were 
withdrawn  from  the  joint  stock,  and  that,  to  the  claim  for 
dower  of  the  widow,  of  one  of  the  partners,  the  tenant  could 
not  avail  himself  at  law  of  the  land,  having  been  a  part  of  the 

1  Greene  v.  Greene,  1  Ham.  250;  Sumner  v.  Hampson,  8  Ham.  365  ;  Burnside 
V.  Merrick,  4  Met.  537  ;  Dyer  v.  Clark,  5  Met.  562 ;  Howard  v.  Priest,  6  Met.  582 ; 
Woolridge  v.  Wilkins,  3  How.  Miss.  372;  Duhring  v.  Duhring,  20  Mo.  174; 
Richardson  v.  Wyatt,  2  Desauss.  471 ;  Pierce  v.  Trigg,  10  Leigh,  406  ;  Goodburn 
V.  Stevens,  5  Gill,  1 ;  s.  c.  1  Md.  Ch.  Dec.  437  ;  Markham  v.  Merrett,  7  How.  Miss. 
437.  But  see  Smith  v.  Jackson,  2  Edw.  Ch.  23;  Hale  v.  Plumraer,  6  Ind.  121; 
Loubat  V.  Nourse,  5  Florida,  350  ;  Bopp  v.  Fox,  63  III.  540 ;  Post*  423. 

-  Goodburn  v.  Stevens,  1  Md.  Ch.  Dec.  437. 

2  See  Markham  v.  Merrett,  7  How.  Miss.  445,  and  the  dictum  of  the  Vice-Chan- 
cellor  in  Smith  v.  Jackson,  2  Edw.  Ch.  36,  in  respect  to  the  above  cited  case  of 
Greene  v.  Greene,  1  Ham.  250. 

4  Coster  V.  Clark,  3  Edw.  Ch.  428. 
^  Hawley  v.  James,  5  Paige,  Ch.  451-457. 

6  Story,  Part.  §§  92,  93  ;  Colly er,  Part.  82;  Smith  v.  Smith.  5  Ves.  189  ;  Park, 
Dow.  106. 


202  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

joint  stock  of  the  former  owners. ^  And  wliere  the  purchase 
and  holding  of  hind  by  persons  who  were  partners  was  not 
done  with  an  intention  to  throw  it  into  the  fund  as  partner- 
ship stock,  but  was  collateral  to  their  j)artnership  business, 
and  as  a  means  of  carrying  that  on,  it  was  held  that  the  widow 
of  one  of  the  partners  was  not  excluded  from  her  claim  to 
dower.  Thus  where  W.  &  C.  agreed  to  purchase  two  hundred 
acres  of  land,  on  which  was  a  mill,  and  having  done  so,  com- 
menced and  carried  on  the  business  of  milling  as  partners 
upon  the  premises  for  several  years,  it  was  held  that  as  to  the 
real  estate  they  were  tenants  in  common,  and  their  wives 
entitled  to  dower.^  * 

13.  The  law  as. to  dower  out  of  equitable  estates  was,  until 

the  late  dower  act,  different  in  England  from  the  law 
[*161]  as  it  generally  *  prevails  in  this  country.     All  the 

early  authorities,  both  at  common  law  and  in  equity 
there,  held  that  a  widow  was  not  dowable  of  the  interest  of  a 
trustee  or  cestui  que  trust  in  lands,  and  this  restriction  was 
extended  to  an  equity  of  redemption,  although  an  effort  was 
made  more  than  once  by  eminent  chancellors  to  extend  the 
right  of  dower  in  this  to  the  widow  of  him  who  held  it,  the 
estate  of  the  husband  in  such  case  not  being  deemed  a  legal 
estate,  if  the  mortgage  were  in  fee,  and  not  for  years  only.-^ 
And  so  far  was  this  doctrine  carried,  that  if  a  man  before 
marriage  conveyed  his  estate  privately  without  the  knowledge 
of  his  wife,  to  trustees  in  trust  for  himself  and  his  heirs  in  fee, 
that  would  prevent  dower.  "  So  if  a  man  purchases  an  estate 
after  marriage,  and  takes  a  conveyance  to'trustees  in  trust  for 
himself  and  his  heirs,  that  will  put  an  end  to  dower."  *     And 

*  Note.  — It  is  hardly  necessary  to  remind  tlie  reader  of  the  different  mediums 
through  which  the  subject  of  land,  being  regarded  as  personalty  for  partnership 
purposes,  is  viewed  by  courts  of  equity  and  those  of  common  law.  But  it  should 
be  borne  in  mind  in  examhiing  the  cases  relating  to  this  point. 


1  Markhami'.  Merrett,  7  How.  (Miss.)  437. 

2  Wheatley  v.  Calhoun,  12  Leigh,  204 ;  Hale  v.  Plummer,  6  Ind.  12L 

3  Eq.  Cas.  Abr.  384.  pi.  9  ;  2  Crabb,  Real  Prop.  161 ;  4  Kent,  Com.  43 ;  Tud. 
Cas.  46;  1  Roper,  Hus.  &  Wife,  354-358;  Dixon  v.  Saville,  1  Bro.  C.  C.  326; 
D'Arcy  V.  Blake,  2  Sch.  &  Lef.  387;  Mayburry  v.  Brien,  15  Pet.  38.  The  case 
of  Banks  v.  Sutton,  2  P.  Wms.  716,  in  favor  of  allowing  dower  in  such  cases  was 
overruled,  and  generally  denied  to  be  law.     Park,  Dow.  138;  4  Kent.  Com.  43. 

4  Co.  Lit.  208  a,  n.  105. 


CH.  vir.  §  2.]  DOWER.  203 

though  the  changes  in  the  law  in  this  respect  have  in  late 
years  been  so  great  that  the  matter  has  become  one  of  little 
consequence,  it  may  be  well  to  notice  here  the  distinction  that 
for  a  long  time  obtained  between  the  right  of  curtesy  and 
dower  in  equitable  estates,  the  husband  of  a  cestui  que  trusty 
if  of  inheritance,  being  entitled  to  curtesy,  but  the  wife  of  a 
similar  cestui  que  trust  being  denied  dower.  This  seems  to 
have  grown  out  of  the  attempt  of  the  court  of  chancery  in 
England  to  build  up  a  system  of  trusts  with  the  incidents  of 
legal  estates  out  of  the  old  system  of  uses,  which  had  their 
existence  in  chancery  alone,  and  which  it  was  attempted  to 
suppress  by  the  statute  of  uses,  27  Hen.  VIII.  c.  10,  and  the 
nature  of  which  has  been  heretofore  explained. ^  A  widow 
was  never  dowable  of  a  use,  and  it  had  come  to  be  not  an  in- 
frequent mode  of  evading  the  right,  to  have  lands  conveyed 
so  as  to  be  held  by  another  to  the  use  of  the  husband,  instead 
of  being  conveyed  directly  to  himself.^  The  object 
of  the  statute  of  uses  was  to  *  do  away  with  this  [*162] 
double  ownership  of  lands,  and  to  restore  the  tenure 
and  title  of  these  to  their  original  simplicity  at  common  law. 
But  the  ingenuity  of  chancery  courts  and  chancery  lawyers 
ere  long  discovered  a  mode  of  evading  the  spirit  of  the  law, 
by  subtle  refinements  and  distinctions  in  construing  the  stat- 
ute, and  of  building  up  a  system  of  equitable  estates  under 
the  name  of  trusts,  whereby  the  legal  seisin  and  estate  was  in 
the  trustee,  and  the  beneficial  interest  or  equitable  estate  in 
the  cestui  que  trust.^  In  carrying  out  this  measure,  it  was  the 
study  and  aim  of  chancery  to  give  to  equitable  estates,  as  near 
as  might  be,  the  incidents  and  attributes  of  legal  estates  at 
common  law.  It  was  accordingly  understood  and  assumed 
that  the  incidents  of  curtesy  and  dower  attached  to  equitable 
as  to  legal  estates  at  the  common  law,  and  that  construction 
was  actually  applied  in  cases  of  curtesy.  But  when  it  was 
proposed  to  extend  it  to  dower,  it  was  ascertained  that  so 
many  estates  in  the  kingdom  had  been  settled  in  the  form  of 
trusts,  for  the  very  purpose  of  avoiding  dower,  that  it  would 
produce  very  great  confusion  in  titles  if  widows  should  be 
made  dowable  of  such  estates,^  and  an  exception  was  made  in 

1  Aiiffi,  p.  *55.  2  Perkins,  §  349. 

3  Wms.  Real  Prop.  134-136.  <  D'Arcy  v.  Blake,  2  Sch.  &Lef.  387. 


20-4  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

tins  respect,  which  continued  till  the  late  dower  act  of  the 
3  and  4  Wm.  IV.  c.  165,  removed  this  anomaly  as  regards 
dower.^ 

14.  But  neither  in  England  nor  in  this  country  can  the  widow 
of  a  trustee  have  dower,  although  he  holds  the  legal  seisin 
and  estate. 2  But  if  the  trustee  acquire  the  equitable  estate, 
the  latter  merges  in  the  legal  estate  of  the  trustee,  and  his 
wife  becomes  entitled  to  dower.^  Though  it  is  suggested  by 
Judge  Kent,  that  so  far  as  the  husband  has  a  beneficial  in- 
terest in  the  trust  estate,  his  wife  may  be  endowed.*  And  so 
far  as  the  legal  and  trust  estate  are  coextensive,  the  equitable 

merges  in  the  legal  estate  and  gives  the  wife  dower.^ 
[*163]   But  where  the  husband  *  before  marriage  gave  bond 

to  convey  his  land,  he  was  regarded  in  equity  as 
trustee  of  the  vendee,  and  having  married,  his  wife  was  denied 
dower.^  So  where  the  husband  had  a  general  power  of  ap- 
pointment to  uses  of  an  estate  held  in  trust  for  that  purpose 
by  another,  his  wife  was  not  dowable  thereof,  he  having  made 
the  appointment,  although  until  the  appointment  made,  or  in 
default  thereof,  the  estate  was  to  be  held  to  his  use  in  fee.'' 

15.  The  wife  of  a  mortgagee  cannot  claim  dower  in  the 
mortgaged  estate  until  the  same  is  foreclosed.^  And  even  if 
the  husband  enters  to  foreclose  the  mortgage,  and  then  con- 
veys his  interest,  and  the  mortgage  is  foreclosed  in  the  hands 
of  his  grantee,  his  wife  will  not  be  entitled  to  dower.^  The 
estate  in  the  lands  remains  in  the  mortgagor  while  the  mort- 
gagee has  a  security  only  in  it.^'^ 

1  1  Spence,  Eq.  Jur.  501 ;  1  Atkinson,  Conv.  278. 

2  Noel  V.  Jevon,  Freem.  Ch.  43 ;  Hill  on  Trust.  269  ;  Tud.  Cas.  47  ;  2  Eq.  Cas. 
Abr.  383  ;  Derush  v.  Brown,  8  Ham.  412;  Greene  v.  Greene,  1  Ham.  249  ;  Bartlett 
V.  Gouge,  5  B.  Mon.  152  ;  Robisou  v.  Codraan,  1  Sumn.  129  ;  Cowman  v.  Hall,  3 
Gill  &  J.  398  ;  Powel  v.  Monson,  3  Mas.  364 ;  Cooper  v.  Whitney,  3  Hill,  97. 
Brooks  V.  Everett,  13  Allen,  458. 

»  Hopkinson  v.  Dumas,  42  N.  H.  303,  306. 

*  4  Kent,  Com.  43,  46  ;  Prescott  v.  Walker,  16  N.  H.  843. 

5  Dean  v.  Mitchell,  4  J.  J.  Marsh.  451 ;  Hill  on  Trust.  252,  n. ;  Coster  v.  Clarke, 
3  Edw.  Ch.  428. 

6  Dean  v.  Mitchell,  4  J.  J.  Marsh.  451.         ^  Ray  v.  Pung,  5  B.  &  Aid.  561. 

8  Tud.  Cas.  47;  4  Kent,  Com.  43;  4  Dane,  Abr.  671. 

9  Foster  v.  Dwinel,  49  Maine,  44. 

10  Crittenden  v.  Johnson,  6  Eng.  (Ark.)  44. 


CH.  VII.  §  2.]  DOWER.  205 

16.  As  a  general  proposition,  the  laws  of  the  United  States 
may  be  said  to  coincide  with  those  of  England,  as  to  dower 
in  equitable  estates,  under  her  present  Dower  Act,  although 
it  is  not  uniform  in  all  the  States,  and  in  some  the  ancient 
doctrine  of  the  common  law  prevails.  Thus,  it  has  been  held 
in  the  District  of  Columbia,  a  wife  is  not  dowable  of  an  equity 
of  redemption.^  So,  in  Maine,  the  wife  of  Si*cestu{  que  trust 
is  not  dowable.2  But  in  Maryland  she  would  be  dowable  if 
the  husband  hold  the  equitable  estate  at  his  death.  And  the 
law  is  the  same  in  New  York  and  Kentucky,  and  in  North 
Carolina,  Iowa,  and  Tennessee.^  In  Illinois,  the  widow  of 
one  having  an  equitable  estate  in  fee  in  land,  of  which  the 
husband  receives  the  rents  and  profits,  is  entitled  to  dower 
out  of  the  same.*  In  Pennsylvania,  also,  the  wife  of  a  cestui 
que  trust  is  dowable.^  And  the  law  is  the  same  for  both  legal 
and  equitable  estates  in  this  respect.  Dower  belongs  to  both.^ 
In  Virginia  and  Alabama  a  wife  may  have  dower  out  of  a 
complete  equitable  estate  of  the  husband,  if  it  be  such  that  a 
court  of  equity  would  enforce  the  conveyance  of  the  legal 
estate.'^  Other  cases  of  equitable  estates,  where  by  local  law 
dower  has  been  allowed,  might  be  enumerated,  as  in 
*  Kentucky,  Ohio,  and  Illinois,  where  a  widow  is  dow-  [*164] 
able  of  lands  contracted  for  by  the  husband,  but  not 
conveyed  till  after  his  death ;  but  it  is  not  deemed  expedient 
to  load  these  pages  with  citations  of  authorities  in  the  attempt 
to  explain  or  define  local  enactments.^  In  Iowa  she  has  not  a 
right  of  dower  in  lands  to  which  her  husband  had  acquired  a 
pre-emptive  right  under  the  United  States.^  In  Massachu- 
setts, as  a  general  proposition,  the  common  law  as  to  dower 

1  Stelle  V.  Carroll,  12  Pet.  201.  2  Hamlin  v.  Hamlin,  19  Me.  141. 

3  Bowie  r.  Berry,  1  Md.  Ch.  Dec.  452 ;  Miller  v.  Stump,  3  Gill,  304  ;  Hawley 
V.  James,  5  Paige,  Ch.  318 ;  Lawson  v.  Morton,  6  Dana,  471 ;  Thompson  v. 
Thompson,  1  Jones  (N.  C),  430;  Lewis  v.  James,  8  Humph.  537;  Barnes  v. 
Gay,  7  Iowa,  26  ;  Gully  v.  Ray,  18  Ky.  113. 

*  Atkins  V.  Merrill,  39  111.  62.  5  Shoemaker  v.  Walker,  2  S.  &  R.  554. 

6  Dubs  V.  Dubs,  31  Penn.  St.  154. 

T  Rowton  V.  Rowton,  1  Hen.  &  M.  92 ;  Gillespie  v.  Somerville,  3  Stew.  &  P. 
(Ala.)  447. 

8  Robinson  v.  Miller,  1  B.  Mon.  93 ;  Smiley  v.  Wright,  2  Ohio,  512 ;  Daven- 
port V.  Farrar,  1  Scam.  314. 

9  Bowers  v.  Keesecker,  14  Iowa,  301. 


206  LAW    OF    REAL    PROPERTY.  [BOOK    I. 

in  equitable  estates  prevails.  But  by  statute,  where  there  is 
an  agreement  to  convey  lands,  and  the  party  dies,  to  whom 
the  conveyance  is  to  be  made,  provision  is  made  whereby  any 
person  having  an  interest  to  compel  performance  may  pro- 
cure it  to  be  made.  And  it  has  been  held  that  the  widow  of 
such  contracting  party  may  claim  dower  through  such  decree, 
in  the  land  conveyed.^  But  this  applies  only  to  cases  where 
the  contract  has  been  performed  on  the  part  of  the  husband  in 
his  lifetime.^ 

17.  So  with  equities  of  redemption,  the  principle  of  regard- 
ing them  as  legal  estates  and  subject  to  dower  so  generally 
prevails  in  this  country,  that  to  cite  all  thje  cases  in  which  the 
doctrine  is  stated  or  confirmed,  would  be  occupying  room  that 
might  be  more  usefully  employed.  It  is,  therefore,  proposed 
onl}^  to  give  from  the  numerous  authorities  that  are  found  in 
our  reports,  one  or  two  in  addition  to  those  already  cited,  in 
each  State,  most  of  them  relating  to  dower  in  equities  of  re- 
demption, but  some  of  them  to  equitable  estates  generally. 
And  it  may  be  remarked  in  passing,  that  the  law  is  the  same 
whether  the  estate  is  mortgaged  before  coverture  or  during 
coverture,  if  the  wife  join  in  the  mortgage.^  A  case*  recently 
decided  in  New  York  furnishes  a  further  illustration  of  the 
extent  to  which  equity  applies  the  doctrine  of  dower  out  of 
equital)le  estates.  The  husband  in  that  case  had  bid  off  an 
estate  sold  by  order  of  the  court  of  equity,  but  had  paid  at 
the  time  of  his  death  only  a  part  of  the  purchase-money,  and 
consequently  had  received  no  deed.  It  was  held  that  his 
widow  might  have  dower  out  of  the  estate,  she  contributing 
pro  rata  towards  the  balance  of  the  purchase-money. 

18.  In  many  cases  besides,  courts  of  equity  allow  dower 
out  of  money  which  has  been  the  proceeds  of  the  sale  of  real 

1  Reed  t-.  Whitney,  7  Gray,  533  ;  Gen.  Stat.  c.  113,  §  2,  pi.  3. 

2  Lobdell  V.  Hayes,  4  Allen,  187. 

3  Mayburry  v.  Brien,  15  Pet.  38;  Simonton  v.  Gray,  84  Me.  50;  Gibson  v. 
Crehore,  3  Pick.  475;  Titus  v.  Ncilson,  5  Johns.  Ch.  4-52 ;  Montgomery  v.  Bruere, 
2  South.  8G5;  .Taylor  v.  McCrackin,  2  Blackf.  262;  Heth  v.  Cocke,  1  Rand. 
344;  Stoppelbein  v.  Shulte,  1  Hill,  (S.  C.)  200;  Fish  v.  Fish,  1  Conn.  559; 
Wooldridge  v.  Wilkins,  3  How.  (Miss.)  360;  Mclver  v.  Cherry,  8  Humph.  713; 
Thompson  v.  Boyd,  1  N.  J.  58 ;  Mills  v.  Van  Voorhis,  23  Barb.  125,  136 ;  McAr- 
thur  V.  Franklin,  15  Ohio  St.  508,  16  lb.  193. 

4  Church  V.  Church,  3  Sandf.  Ch.  434. 


CH.  YII.  §  2.]  DOWER.  207 

estate  in  place  of  assigning  it  out  of  the  real  estate  itself, 
where  the  sale  has  been  made  by  order  of  court  or  by  the 
wrongful  act  of  an  agent  or  trustee,  and  the  parties 
interested  have  elected  to  *  affirm  the  sale.  So,  where  [*165] 
land  in  which  a  widow  has  a  right  of  dower  is  appro- 
priated, under  the  exercise  of  eminent  domain,  for  public  uses, 
and  a  sum  of  money  is  awarded  for  such  taking,  she  may  claim 
and  have  as  dower  out  of  such  money  one-third  of  the  net 
income  of  the  same.^  In  England,  under  like  circumstances, 
the  court  awarded  her  as  her  dower  a  sum  properly  estimated 
out  of  the  corpus  or  principal  of  the  money  paid  for  the  land 
taken,  instead  of  annual  payments.^  And  where  a  mortgage 
in  which  the  wife  had  joined  was  foreclosed  by  a  sale  of  the 
premises,  and  a  surplus  remained  after  satisfying  the  mortgage 
debt,  she  was  held  entitled  to  dower  out  of  such  surplus.^  It 
will  be  necessary  to  recur  to  this  subject  again  when  speaking 
of  assigning  dower  in  equity,  but  the  following  cases  may  be 
cited  to  illustrate  the  point.^ 

19.  Akin  to  an  equity  of  redemption,  and  governed  in  many 
respects  by  the  same  rule  as  to  dower,  is  the  interest  which 
the  husband  has  in  lands  for  which  the  purchase-money  has 
not  been  paid,  in  those  States  where  the  vendor  of  lands  has 
a  lien  upon  them  for  the  purchase-money.  The  widow  is  en- 
titled to  share  in  the  surplus  left  after  discharging  such  lien, 
as  will  be  explained  wlien  the  subject  of  assigning  dower  in 
equity  is  considered.^  And  in  Kentucky  it  has  been  held  that 
a  widow  can  only  claim  dower  subject  to  lien  of  the  builder, 

1  Bonner  v.  Peterson,  44  111.  258. 

2  In  re  Hall's  Estate,  L.  R.  9  Eq.  Cas.  179. 

3  Bank,  &c.  v.  Owens,  31  Md.  320. 

4  Jennison  v.  Hapgood,  14  Pick.  345 ;  Titus  v.  Neilson,  5  Johns.  Ch.  452 ; 
Beavers  v.  Smith,  11  Ala.  88;  Church  v.  Church,  3  Sandf.  Ch.434;  Williams  r. 
Woods,  1  Humph.  408 ;  Hawley  v.  James,  5  Paige,  Ch.  318 ;  Keith  v.  Trapier,  1 
Bailey,  Eq.  63;  Hawley  v.  Bradford,  9  Paige,  Ch.  200;  Hartshorne  v.  Harts- 
horne,  1  Green,  Ch.  349  ;  Smith  v.  Jackson,  2  Edvv.  Ch.  28 ;  Thompson  v.  Coch- 
ran, 7  Humph.  72 ;  Willet  v.  Beatty,  12  B.  Mon.  172  ;  post,  §  5,  pi.  25 ;  Chaney 
V.  Chaney,  38  Ala.  35,  38;  Williamson  v.  Mason,  23  Ala.  488  ;  Matthews  v.  Dur- 
yee,  45  Barb.  69. 

5  McClure  v.  Harris,  12  B.  Mon.  261  ;  Miller  v.  Stump,  3  Gill,  304 ;  Crane  v. 
Palmer,  8  Blackf.  120  ;  EUicott  v.  Welch,  2  Bland,  242;  Warren  v.  Van  Alstyne, 
3  Paige,  Ch.  513 ;  Williams  v.  Wood,  1  Humph.  408 ;  Thompson  v.  Cochran,  7 
Humph.  72 ;  Barnes  v.  Gay,  7  Iowa,  26. 


208  LAW   OF   REAL    PROPERTY.  [bOOK   I. 

whom  her  husband  has  employed  to  erect  buildings  on  the 
land.^  But  the  law  in  tliis  respect  is  otherwise  held  in  Massa- 
chusetts, Illinois,  and  Indiana,  in  which  States  similar  ques- 
tions have  been  raised.^ 

20.  And  where  there  was  a  judgment  outstanding  at  the 
time  of  the  marriage,  which  by  the  law  of  the  State  constituted 
a  lien  upon  the  land,  the  widow  can  only  claim  her  dower 
in  the  land  subject  to  such  lien,^  unless  the  judgment  happen 
to  be  entered  up  the  same  day  with  the  marriage,  in  which 
case  the  dower  right  obtains  the  precedence.* 

21.  A  widow  is  entitled  to  dower  in  mines  belonging  to  her 
husband  in  fee,  which  may  have  been  opened  during  his  life- 
time, whether  within  his  own  land  or  that  of  another.^ 

[*166]  And  *  this  extends  to  quarries  of  slate  and  other  stone  ; 
the  working  of  the  mines  and  quarries  in  such  case, 
if  within  the  dower  lands  of  the  widow,  being  a  mode  of  en- 
joyment of  the  dower  land  itself.^  But  though  she  may  work 
an  open  mine,  under  her  claim  of  dower,  to  exhaustion,  she 
may  not  open  new  ones  even  within  the  land  set  to  her  as  a 
part  of  her  dower.  Nor  can  she  claim  her  dower  in  mines  in 
other  lands  of  her  husband  than  those  set  off  to  her  as  her 
dower  estate.'^  What  shall  be  regarded  as  an  open  mine  or 
quarry  is  not  always  easy  to  define,  though  one  or  two  de- 
cided cases  may  aid  in  determining  it.  In  Coates  v.  Cheever,^ 
a  bed  of  iron  ore  had  been  opened  by  the  husband,  and  after 
being  wrought  a  while  was  discontinued,  and  partially  filled 
up,  and  new  openings  had  been  made  by  the  heir,  and  yet  it 
was  held,  for  purposes  of  dower,  to  be  an  open  mine.  In 
Billings  V.  Taylor,^  a  quarry  of  slate-stone  underlay  about  four 
acres.     The  mode  of  working  it  was  to  uncover  a  space  of  ten 


1  Nazareth  Inst.  v.  Lowe,  1  B.  Mon.  257. 

2  Van  Vronker  v.  Eastman,  7  Met.  157  ;  Shaeffer  v.  Ward,  3  Gilm.  511 ;  Pifer 
V.  Ward,  8  Blackf.  252. 

3  Bobbins  v.  Ilobbins,  8  Blackf.  174 ;  Queen  Anne's  Co.  v.  Pratt,  10  Md.  3. 
*  Ingram  v.  Morris,  4  Harring.  111. 

6  Stoughton  V.  Leigh,  1  Taunt.  402 ;  Coates  v.  Cheever,  1  Cow.  460. 
6  Billings  V.  Taylor,  10  Pick.  460 ;  Moore  v.  Rollins,  45  Maine,  493,  ease  of  a 
lime  quarry. 

^  Park,  Dow.  119.  ^  Coates  v.  Cheever,  1  Cow.  460. 

»  Billings  V.  Taylor,  10  Pick.  460. 


CH.  VII.  §  2.]  DOWER.  209 

or  twelve  feet  square,  and  excavate  the  slate  to  a  certain  depth 
and  then  commence  a  new  pit.  At  the  time  of  the  husband's 
death  he  had  excavated  about  a  quarter  of  an  acre  in  this 
manner  ;  and  the  question  was,  whether  his  widow  could 
claim  dower  out  of  the  four  acres  and  excavate  stone  from 
any  part  that  might  be  set  to  her,  and  it  was  held  that  she 
might,  the  whole  being  an  open  quarry.* 

22.  In  Kentucky,  shares  in  the  capital  stock  of  railroad 
companies,  being  deemed  real  estate,  are  subject  to  the  claim 
of  a  widow's  right  of  dower.^  And  a  similar  principle  applies 
as  to  shares  in  some  of  the  inland  navigation  companies  in 
England.^  But  as  a  general  thing,  shares  in  corporations  are 
considered  mere  personal  chattels. 

*23.  In  most  of  the  States,  it  is  believed,  a  widow  [*167] 
is  dowable  of  wild  lands,  as  is  settled  in  many  ad- 
judged cases,  some  of  which  were  cited  and  considered  when 
treating  of  waste.^  But  in  Massachusetts,  Maine,  and  New 
Hampshire,  it  has  been  held  that,  upon  the  principle  of  the 
common  law  as  laid  down  by  Bracton,  Nihil  clamare  poterit 
mulier  in  dotem  suam,  nisi  quod  uti  et  frui  possit  de  rebus 
dotalibus  shie  vasto,  destructione  vel  exilio,^  a  woman  shall  not 
be  dowable  of  wild  and  uncultivated  wood  and  forest  lands, 
unless  the  same  were  used  in  connection  with  a  cultivated 
farm  and  tenement  for  supplying  fuel  and  timber  for  the  nec- 
essary purposes  of  the  farm.^  Nor  would  the  clearing  and 
subduing  of  such  land  by  the  husband's  grantee  during  his 
life,  give  his  widow  any  better  right  to  dower  in  the  same.^ 

*  Note.  —  The  subject  will  be  resumed  when  the  mode  of  assigning  dower 
is  considered. 

i  Price  V.  Price,  6  Dana,  107. 

2  Park,  Dow.  113. 

3  Campbell's  Appeal,  2  Dougl.  (Mich.)  141;  Chapman  v.  Schroeder,  10  Ga. 
321 ;  Macaulay  v.  Dismal  Swamp,  2  Rob.  ( Va.)  507  ;  Hickman  v.  Irvine,  3  Dana, 
121 ;  Allen  v.  McCoy,  8  Ham.  418. 

*  Bracton,  315. 

5  Conner  v.  Shepherd,  15  Mass.  167;  White  v.  Willis,  7  Pick.  143;  Kuhn  v. 
Kaler,  14  Me.  409  ;  Stevens  v.  Owen,  25  Me.  94 ;  Jolmson  v.  Perley,  2  N.  H.  56. 
See  Mass.  Gen.  Stat.  c.  90,  §§  12,  15,  and  17,  in  what  cases  she  may  clear  lands, 
or  cut  wood  on  lands,  set  to  her  out  of  her  husband's  estate.  Ford  v.  Erskine, 
50  Me.  227  ;  Fuller  v.  Wason,  7  N.  H.  341. 

6  Webb  V.  Townsend,  1  Pick.  21. 

VOL.  I.  14 


210  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

24.  Dower  may  also  be  claimed  out  of  various  species  of 
incorporeal  hereditaments  which  belonged  to  the  husband  as 
an  inheritance,  such  as  rights  of  fishing,  rents,  and  the  like.^ 
Of  these  last  the  chancellor,  in  Chase's  case,^  remarked,  "  It 
is  clear  that  a  woman  may  be  endowed  of  a  rent  service,  rent 
charge,  or  rent-seek,"  while  speaking  of  the  law  as  it  is  under- 
stood in  Maryland.*  But  care  should  be  used  to  discriminate 
between  hereditaments  out  of  which,  by  the  manner  of  their 
creation  and  the  form  in  which  they  exist,  dower  may  arise, 
and  those  where  it  may  not.  Thus  of  a  personal  annuity  not 
issuing  from  lands,  dower  cannot  be  claimed,  although 
[*168]  the  *  husband  held  it  to  himself  and  his  heirs.^  And 
so  far  as  these  hereditaments  are  appendant  upon 
other  estates,  a  right  to  be  endowed  of  them  is  by  reason  of 
their  appendancy  to  the  estate  out  of  which  she  has  her 
dower.^  So  far  as  rents  are  concerned  they  should,  in  order 
to  attach  to  them  the  right  of  dower,  be  granted  or  created 
as  estates  of  inheritance.  But  of  such  rents  a  widow  is  dow- 
able,  though  it  is  apprehended  that  instances  of  these  are  rare 
in  this  country.^  If,  therefore,  a  man  make  a  lease  for  years, 
reserving  rent,  and  marry  and  die  before  the  expu-ation  of  the 
term,  his  wife  will  not  be  endowed  of  the  rent,  but  she  may 
be  of  the  reversion,  and  the  rent  pro  rata  will  belong  to  her 
as  incident  to  the  reversion.^  But  if,  in  the  case  supposed, 
the  husband  had  made  a  lease  for  his  own  life  reserving  rent, 
his  wife  could  not  claim  dower  either  in  the  rent  or  the  land, 
—  not  in  the  rent,  for  it  is  determined  at  the  death  of  the 
husband,  and  not  in  the  land,  for  of  that  the  husband  at  no 
time  during  coverture  had  any  other  estate  than  a  reversion.'^ 

*  Note.  —  Yet  qiicere  as  to  rent  service,  unless,  as  in  Pennsylvania,  the  statute 
Quia  Emplores  is  not  a  part  of  the  law  of  that  State.  Smith,  Land.  &  Ten.  90, 
and  n. 

1  Co.  Lit.  32a;  2  Bl.  Com.  132  ;  Park,  Dow.  36,  112;  Perkins,  §  347. 

2  Chase's  case,  1  Bland,  227. 

3  Perkins,  §  347  ;  Co.  Lit.  132  a ;  Tud.  Cas.  42 ;  Aubin  v.  Daly,  4  B.  &  Aid.  69. 

*  Park,  Dow.  115;  4  Kent,  Com.  40. 

5  Co.  Lit.  32  a ;  Id.  144  b ;  2  Cruise,  Dig.  291 ;  post,  vol.  2,  p.  *8. 

6  Co.  Lit.  32  a ;  Stouf^liton  v.  Leigh,  1  Taunt.  410 ;  Chase's  case,  1  Bland, 
227  ;  Weir  v.  Tate,  4  Ired.  Eq.  264. 

^  Co.  Lit.  32  a  ;  Weir  v.  Tate,  4  Ired.  Eq.  264. 


CH.  VII.  §  3.]  DOWER.  211 

25.  If  corn  or  other  annual  crop  be  growing  upon  the  hus- 
band's lands  at  the  time  of  his  death,  which  shall  be  as- 
signed to  her  as  dower,  she  will  be  entitled  to  the  same, 
instead  of  his  executors.^  As  a  compensatory  provision  to 
the  estate,  the  common  law  denied  to  her  representatives  the 
crops  growing  upon  her  dower  land  at  her  decease.^  But  the 
statute  of  Merton,  ch.  2,  interposed,  and  gave  her  the  right 
of  disposal  of  these,  and  they  now  go  to  personal  representa- 
tives of  the  tenant  in  dower,  hke  emblements  in  other  cases.^ 


♦SECTION  III.  [*169] 

REQUISITES   OF   DOWEB. 

1.  Reqiiisites  enumerated. 

2.  Legal  marriage. 

3.  What  marriages  legal. 

4.  Validity  of  marriage,  how  determined. 

5.  Seisin  of  Imsband. 

5  a.  Effect  of  conveyance  by  husband  before  marriage  on  dower. 

6.  Seisin  need  not  be  rightful. 

7.  May  be  defeasible. 

8.  Seisin  sufficient  in  time. 

9.  Instantaneous  seisin. 

10.  Dower  in  case  of  mortgages. 

11.  When  seisin  instantaneous. 

12.  Seisin  must  be  effectual. 

13.  Seisin  in  equity. 

14.  Seisin  defeated  by  husband. 

15.  Equitable  seisin,  how  lost. 

16.  Equities  of  redemption. 

17.  Effect  of  foreclosure. 

18.  Effect  of  redeeming  estates. 

19.  Effect  of  satisfying  mortgages. 

20.  Effect  of  merger  on  dower. 

21.  Wlien  dower  not  affected  by  discharge,  &c. 

22.  When  recoverable  In  equity. 

23.  Effect  of  discliarge  of  mortgage. 

24.  What  is  evidence  of  seisin. 

25.  Tenant  estopped  to  deny  seisin. 

26.  Feoffee  estopped  to  deny  it  in  feoffer. 

27.  When  tenant  is  not  estopped. 
28  Death  of  husband. 

1  2d  Inst.  81  ;  Ralston  v.  Ralston,  3  G.  Greene  (Iowa),  583. 

2  Bracton,  §  2,  96.  3  2d  Inst.  81 ;  Park,  Dow.  356 


212  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

1.  The  requisites  of  dower  are,  marriage,  seisin  of  the 
husband  and  his  death ;  and  these  will  be  considered  in 
their  order. ^  * 

2.  The  marriage  must  be  a  legal  one,  though,  if  voidable 
only  and  not  void,  the  wife  will  be  entitled  to  dower  if  it  be 
not  dissolved  during  the  life  of  the  husband.^ 

8.  Among  the  marriages  which  are  void  at  common  law, 
are  those  with  idiots  and  with  persons  insane  at  the  time, 
especially  if  they  do  not  afterwards  have  lucid  intervals,  and 
do  that  which  will  give  validity  to  the  marriage.^  So  would 
be  a  marriage  with  a  second  wife  during  the  life  of  the  first 
without  a  divorce  first  had,  even  though  the  first  wife  were 
to  die  during  the  lifetime  of  the  husband,  unless  the  cohabi- 
tation after  her  death  were  under  such  circumstances  as  to 
raise  a  legal  presumption  that  a  marriage  had  taken  place 
after  the  husband  was  again  free  to  contract  it.*  The  age  at 
wdiich  parties  may  contract  a  legal  marriage  varies  in  different 
countries  and  States,  though,  if  contracted  at  an  earher  age, 
they  are  not  void,  but  voidable,  and,  unless  avoided  in  the 
husband's  lifetime,  will  lay  the  foundation  for  a  claim 
[*170]  of  dower.  At  the  common  law  *  this  age  was  four- 
teen in  males,  and  twelve  in  females.  Yet  it  is  said 
a  widow  may  have  dowser,  if  of  the  age  of  nine  years  at  the 
death  of  her  husband.^  f 

*  Note.  —  Something  more  than  the  ceremony  of  marriage  was  necessary  to 
give  the  wife  a  riglit  of  dower,  by  the  laws  of  Normandy.  "  C'est  au  coucherque 
lefemme  gagne  son  douaire  "  —  "  il  faut  qu'elle  couche  avec  son  mari  pour  acquirer 
son  douaire;  c'est  ce  qui  donne  la  derniere  perfection  a  ce  droit."  1  Flaust,  Coutume 
de  Normandie,  528. 

t  Note.  —  The  idea  of  marrrage  and  dower  at  such  an  age  would  be  ridic- 
ulous if  it  were  not  connected  with  the  memory  of  the  fact  that  the  disposal  of 
his  female  ward  in  marriage  was  once  an  important  perquisite  to  the  lord  as 
guardian  in  chivalry,  which  must  be  effected  before  she  was  sixteen  years  of 
age,  or  she  was  beyond  his  control.     2  Bl.  Com.  131,  n. 


1  2  Bl.  Com.  130. 

2  Co.  Lit.  33  a  ;  Tud.  Cas.  45. 

3  2  Bl.  Com.  130 ;  Clancy,  Rights  of  Wom.  197  ;  Jenkins  v.  Jenkins,  2  Dana, 
102;  Bishop,  Mar.  &  Div.  §  177. 

*  Higgins  V.  Breen,  9  Mo.  497  ;  Perkins,  §§  304,  305  ;  Smart  v.  Whaley,  6  S. 
&  M.  308 ;  Donnelly  v.  Donnelly,  8  B.  Hon.  113. 
5  Co.  Lit.  33  a. 


CH.  vir.  §  3.]  DOWER.  213 

4.  As  a  general  proposition,  though  limited  by  statute  pro- 
visions in  some  cases,  the  validity  of  a  marriage  in  any  given 
case  is  to  be  determined  by  the  law  of  the  country  in  which 
it  is  solemnized.  If  valid  there  it  will  be  valid  everywhere,  and 
so  if  void  there  it  is  everywhere  void.^  One  of  the  exceptions 
to  this  would  be  a  marriage  which  is  polygamous  or  incestuous.^ 
But  in  order  to  be  incestuous  it  must  be  such,  as  is  so  l)y  the 
law  of  nature,  and  is  by  the  general  consent  of  all  Christen- 
dom deemed  to  be  incestuous.^  Thus,  where  an  aunt  and 
nephew  intermarried  in  England,  where  such  a  marriage  was 
voidable  but  not  void,  and  removed  to  Massachusetts,  where 
such  a  marriage  is  absolutely  prohibited,  it  was  nevertheless 
held  that  the  marriage  was  here  to  be  regarded  as  a  valid 
one.'*  Another  exception  arises  from  the  positive  provisions 
of  local  law,  invalidating,  within  that  locality,  marriages  con- 
tracted elsewhere  in  violation  of  such  a  law,  antl  sought  to  be 
enforced  in  the  latter  State.  But  to  constitute  such  an  excep- 
tion the  parties  to  which  it  is  applied  must  be  citizens  of  the 
State  in  which  such  law  exists,  and  subject  to  its  laws  at  the 
time  it  is  applied.  Thus,  suppose  a  party  who  is  divorced 
for  his  own  fault,  is  prohibited  to  marry  by  the  law 
of  *  the  State  where  such  divorce  is  granted,  a  mar-  [*171] 
riage  solemnized  between  him  and  another  in  that 
State  would  be  void.  But  if  he  go  into  another  State  where 
no  such  law  exists,  and  marry  there,  the  marriage  would  be 
so  far  lawful  in  the  State  of  his  domicil  as  to  give  his  wife 
dower.^  And  even  if  a  party  who  has  been  divorced  in  an- 
other State  for  a  cause  which  would  not  be  the  ground  of  a 
divorce  here,  the  parties  being  citizens  and  domiciled  there, 
comes  here  and  marries  in  this  State,  it  will  be  a  valid  mar- 
riage.^ But  if  it  is  expressly  provided,  as  it  is  in  the  statutes 
of  Massachusetts,'^  that  a  marriage  contracted  by  a  part}^  who 

>  Clark  V.  Clark,  8  Cush.  385 ;  Story,  Confl.  of  Laws,  §  113 ;  Cambridge   v. 
Lexington,  1  Pick.  505  ;  Putnam  v.  Putnam,  8  Pick.  433. 

2  Story,  Confl  of  Laws,  §  113;  Smith  v.  Smith,  5  Ohio  St.  32. 

3  Medway  v.  Needham,  16  Mass.  157  ;  Greenwood  v.  Curtis,  6  Mass.  378;  Sut- 
ton V.  Warren,  10  Met.  451  ;  Story,  Confl.  of  Laws,  §  114. 

4  Sutton  V.  Warren,  10  Met.  451. 

5  Putnam  v.  Putnam,  8  Pick.  433;  Commonwealth  v.  Hunt,  4  Cush.  49;  Med- 
way  V.  Needham,  16  Mass.  157. 

6  Clark  V.  Clark,  8  Met.  385.  ^  Mass.  Gen.  Stat.  18G0,  c.  106,  §  6. 


214  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

is  prohibited  from  marrying  here,  and  who  goes  into  another 
State  and  there  marries,  with  an  intent  to  return  here  and  to 
evade  the  law  of  this  State,  shall  be  void  here,  it  will  be  so  held, 
altliough  as  to  the  State  where  it  was  contracted  it  was  valid, 
and  might  be  elsewhere. ^  Of  course,  in  such  a  case,  the  widow 
of  such  marriage  could  not  claim  dower  in  our  courts.  This 
principle  of  regarding  a  marriage  void  in  the  place  of  the  domi- 
cil  of  the  parties,  though  entered  into  in  another  State  where 
such  marriages  are  valid,  because  of  its  being  in  violation  of  a 
positive  law  of  the  place  in  which  they  were  domiciled,  was 
considered  in  the  Vice-Chancellor's  Court  in  England,  by 
Judge  Cresswell,  in  the  case  of  Brook  v.  Brook.^  By  the 
statute  5  and  6  Wm.  IV.  c.  54,  it  was  provided  that  mar- 
riages which  before  had  been  held  voidable  by  the  ecclesi- 
astical courts  as  being  between  persons  within  prohibited 
degrees  of  affinity,  should  be  ipso  facto  void.  In  the  case  of 
Regina  v.  Chadwick,^  it  was  held  that  a  marriage  with  a  sister 
of  a  deceased  wife,  if  performed  in  England,  was  void.  In 
the  case  of  Brook  v.  Brook,  the  question  was  whether  the 
same  principle  should  apply  to  a  marriage  solemnized  by 
English  subjects  in  Denmark,  where  no  such  restraint 
[*172]  exists.  The  *  judge  went  fully  into  former  deci- 
sions, as  well  as  the  doctrine  as  stated  in  Story's  Con- 
flict of  Laws,  and  held  in  general  terms,  "  that  marriages 
contracted  by  the  subjects  of  a  country  in  which  they  are 
domiciled,  in  another  country  are  not  held  valid  if  by  con- 
tracting it  the  laws  of  their  own  country  are  violated."  Vice- 
Chancellor  Stuart  concurred  in  this  opinion.  It  is  conceded 
in  the  discussion  of  the  case  that  the  doctrine  went  further 
than  the  American  law,  as  stated  by  Judge  Story.  But  they 
held  that  the  statute  declaring  all  such  marriages  absolutely 
null  and  void,  was  binding  upon  British  subjects  everywhere. 
There  is  no  question,  it  is  believed,  that  every  nation  may 
make  its  own  laws  which  shall  bind  all  within  its  proper  juris- 
diction, and  the  question  how  far  acts  done  under  another 
jurisdiction  shall  be  valid  within  its  own  territory,  is  one 
rather  of  comity  than  right,  so  that  no  general  rule  can  be 
laid  down  as  to  marriages,  which  shall  apply  to  States  or 

1  3  Sm.  &  Gif.  481.         2  3  Smale  &  G.  48L  8  n  q.  b.  205. 


CH.  vir.  §  3.]  DOWER.  215 

nations  as  a  part  of  the  Jus  gentium^  and  by  which  the  validity 
of  any  marriage  can  be  tested.  In  addition  to  what  has  been 
said  above,  it  may  be  remarked,  that  so  far  as  the  ceremonial 
forms  adopted  in  the  solemnization  of  a  valid  marriage  are 
required,  it  is  snfRcient  that  they  conform  to  those  in  use  in 
the  place  where  it  is  celebrated.  And  that  if  the  ceremonial 
be  not  such  as  to  constitute  it  a  leg^al  marriage  where  it  is 
solemnized,  it  would  not  render  it  a  valid  marriage  even  in 
other  places  where  the  forms  made  use  of  would  have  been 
sufficient.^ 

5.  The  next  circumstance  necessary  to  entitle  a  Mddow  to 
dower  is  that  her  husband  should  have  been  seised  of  the 
premises  at  some  time  during  coverture.  As  a  general  propo- 
sition, every  widow,  at  common  law,  is  entitled  as  dower  to 
one  third  part  of  all  the  lands  and  tenements  of  which  her  hus- 
band was  seised  at  any  time  during  coverture  as  of  inheritance, 
to  hold  to  herself  during  her  natural  life.^  But  before  dis- 
cussing this  matter  more  at  length,  it  is  well  to  fix  what 
would  be  a  sufficient  *  seisin  to  attach  the  right  of  [*173] 
dower  to  premises  in  which  the  husband  may  have  been 
interested.  In  the  first  place,  then,  it  is  not  required  as  in 
case  of  curtesy,  at  common  law,  that  there  should  have  been 
an  actual  seisin  or  seisin  in  deed.  It  is  enough  that  the 
husband  had  a  seisin  in  law,  with  a  right  to  an  immediate 
corporal  seisin.  If  it  were  not  so,  it  might  often  be  in  the 
husband's  power,  by  neglecting  to  take  such  seisin,  to  deprive 
his  wife  of  her  right  of  dower.^  In  North  Carolina,  it  has  been 
held  that  the  seisin  of  a  husband  is  not  sufficiently  complete 
to  give  his  wife  dower,  unless  the  deed  by  which  he  holds  the 
estate  has  been  recorded.*  The  seisin  in  law  above  spoken  of 
is  such,  by  the  way  of  example,  as  an  heir  has,  when  an  estate 
in  fee  has  descended  to  him  without  any  adverse  seisin  in  any 
third  party .5     But  if  before  the  marriage  the  husband  shall , 

1  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  395 ;  Lacon  v.  Higgins,  3  Stark. 
178;  2  Crabb,  Real  Prop.  128. 

2  2  Bl.  Com.  129. 

a  Atwood  V.  Atwood,  22  Pick.  283  ;  Mann  v.  Edson,  39  Me.  25;  Co.  Lit.  31  a; 
Tud.  Cas.  45;  2  Bl.  Cora.  131. 

*  Thomas  v.  Thomas,  10  Ired.  133. 

5  2  Crabb,  Beal  Prop.  128 ;  Co.  Lit.  31  a ;  Dunham  v.  Osborne,  1  Paige,  Ch.  635. 


21G  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

have  lost  his  seisin  by  a  stranger  entering  and  abating  his  right, 
and  he  marries  and  dies  before  regaining  his  seisin  by  entr^^  or 
otherwise,  his  wife  cannot  claim  dower  for  want  of  seisin.^ 
And  where  a  disseisor  employed  an  agent  to  procure  a  deed  of 
release  from  the  disseisee,  who,  instead  of  taking  it  to  the  dis- 
seisor, took  it  to  himself,  it  was  held  that  it  did  not  give  him 
as  grantee  such  seisin  as  would  entitle  his  wife  to  dower,  since 
one  who  is  disseised  could  not  convey  a  seisin  to  a  stranger.^ 
The  same  rule  as  above  stated  as  to  an  abator,  applies  in  the 
case  of  disseisin,  and  the  wife  of  a  disseisee  who  was  disseised 
before  marriage,  cannot  claim  dower,  although  he  still  retains 
a  right  of  entry,  if  he  does  not  exercise  this  right  and  regain 
his  seisin  during  coverture.^  But  in  the  case  above  supposed 
of  the  abatement  of  the  heir,  if  he  had  married  in  the  lifetime 
of  the  ancestor  from  whom  it  descended,  the  seisin  in  law 

which  in  such  case  the  husband  as  heir  had  by  the  de- 
[*174]  scent,  would  inure' to  her  benefit  *  in  the  way  of  dower, 

though  an  abator  should  enter  and  prevent  her  hus- 
band from  acquiring  actual  seisin  during  their  coverture.'^  If, 
therefore,  at  common  law,  the  husband  had  not,  during  cover- 
ture, any  thing  more  than  a  mere  right  of  entry  or  of  action  to 
obtain  seisin,  it  would  not  be  sufficient  to  entitle  his  widow  to 
dower. ^  As  an  illustration  of  this  proposition,  where  one  made 
a  feoffment  upon  condition  and  then  married,  and  during  cover- 
ture the  condition  was  broken,  but  the  husband  neglected  to 
enter  and  revest  the  seisin  in  himself  before  he  died,  his  wife 
was  held  not  to  be  entitled  to  dower,  though  the  heir  entered 
and  regained  the  seisin  for  himself.^  Nor  does  it  make  any 
difference  in  the  effect  of  a  want  of  seisin  that  the  husband 
parted  with  it  before  his  marriage,  with  a  view  to  prevent  his 
future  wife  having  dower,  by  his  own  deed.  And  the  same 
effect  would  follow,  though  as  to  creditors  such  deed  were  to 

1  4  Dane,  Abr.  669 ;  Perkins,  §  367. 

2  Small  V.  Proctor,  15  Mass.  495. 

3  Thompson  v.  Thompson,  1  Jones  (N.  C),  431. 

*  2  Crabb,  Ileal  Prop.  129,  &c. ;  1  Brooke,  Abr.  Dower,  262. 

5  Tud.  Cas.  45. 

6  Thompson  v.  Thompson,  1  Jones  (N.  C),  431. 

\ 


CH.  VII.  §  3.J  DOWER.  217 

prove  void,  or  the  same  should  not  have  been  recorded.^  The 
seisin  of  which  mention  thus  far  has  been  chiefly  made,  should 
be  understood  as  a  legal  seisin  or  its  equivalent,  for  though  by 
the  English  Dower  Act,  as  well  as  hj  the  laws  of  many  of  the 
States,  a  widow  is  dowable  of  equitable  estates  where  of  course 
a  seisin  in  equity  will  be  sufificient,  such  estates  will  be  spoken 
of  hereafter.^ 

5  a.  A  conveyance  by  a  husband  immediately  before  mar- 
riage, if  designed  to  bar  his  wife  of  dower,  and  this  is  not 
known  to  her,  has  been  held,  in  equity,  to  be  fraudulent  and 
not  to  bar  her,  if  the  person  to  whom  the  conveyance  is  made 
was  cognizant  of  the  fact.  But  the  cases  upon  the  subject 
seem  to  be  singularly  conflicting.  In  Swaine  v.  Ferine,^  a 
deed  to  a  daughter,  without  consideration,  given  for  that  pur- 
pose, was  held  not  to  bar  the  wife  of  the  grantor  of  her  dower 
in  the  premises.  But  in  Baker  v.  Chase,*  such  a  conveyance 
to  a  son  by  a  former  wife  as  an  advancement,  was  held  to  be  a 
bar  in  law.  But  the  court  say :  "  What  a  court  of  equity 
might  say  about  such  a  fraud  as  that,  I  will  not  say."  The 
court  rest  the  case  upon  the  technical  rule  that  the  husband 
was  never  seised  during  coverture.  A  case  is  put  by  Mr. 
Cruise,  of  a  man  conveying  land  to  a  trustee  for  himself  in 
order  to  defeat  the  right  of  dowser  in  a  wife  whom  he  was  about 
to  marry,  and  it  was  held  to  be  fraudulent  and  void.^  In  Ten- 
nessee, a  A'oluntary  conveyance,  without  consideration,  with 
an  intent  to  bar  dower,  if  known  to  the  grantee,  would  be 
fraudulent  and  void  as  to  the  wife,*^  and  a  like  doctrine  is  held 
in  Michigan,'  while  in  Vermont  a  doctrine  like  that  in  New 
York  in  the  case  of  Baker  v.  Chase,  is  sustained.^ 

1  Whitlied  V.  Mallory,  4  Cush.  138 ;  Blood  v.  Blood,  23  Pick.  80 ;  Richardson 
V.  Skolfield,  45  Maine,  386. 

2  Post,  p.  *179.     And  see  2  Crabb,  Real  Prop.  130,  162. 

3  Swaine  v.  Perine,  5  John.  Ch.  489.  *  Baker  v.  Chase,  6  Hill,  482. 

5  1  Cruise,  411.     See  4  Cruise,  416. 

6  Brewery.  Connell,  11  Humph.  500;  London  i'.  London,  1  Humph.  1. 

■^  Cranson  v.  Cranson,  4  Mich.  220.  And  also  in  California,  Rowe  r.  Bradley, 
12  Cal.  226. 

8  Jenny  v.  Jenny,  24  Vt.  324.  This  subject  is  fully  considered  in  equity,  and 
a  conveyance  made  by  husband  or  wife  on  the  eve  of  marriage,  unknown  to  the 
other,  if  made  without  valuable  consideration,  held  void  as  to  the  other  party,  by 
Bates,  Ch.,  in  Chandler  v.  HoUingsworth,  post,  vol.  2,  p.  *597. 


218  LAW  OF  REAL  PROPERTT.  [BOOK  I. 

6.  It  is  not,  however,  necessary  that  the  seisin  of  the  hus- 
band should  be  a  rightful  or  an  indefeasible  one.     Thus  the 

widow  of  a  disseisor  or  an  al)ator  and  the  like,  may 
[*175]  hold  dower  against  *  all  persons  exce]3t  the  person  who 

has  the  rightful  seisin,  and  who  has  regained  it  by 
entr}'-  or  suit.^ 

7.  So  though  her  husband's  estate  was  a  defeasible  one,  pro- 
vided it  is  one  of  inheritance,  the  wife  may  claim  and  retain 
her  dower  until  the  estate  is  determined  or  defeated.  Thus 
she  may  have  dower  out  of  lands  held  as  a  base,  or  qualified 
fee,  or  a  fee  upon  condition,  so  long  as  the  seisin  of  such  an 
estate  is  undisturbed.^  And  it  may  be  regarded  as  a  general 
proposition,  that  where  dower  attaches  to  an  estate  it  is  always 
subject  to  the  same  equities  that  existed  against  the  husband's 
title  at  the  time  of  its  attaching.  So  that  if  the  legal  estate 
be  in  the  husband,  and  an  equitable  estate  be  outstanding  in 
favor  of  another  at  the  time  of  the  marriage,  no  right  of  dower 
can  be  set  up  against  such  equitaljle  title.^  And  on  this  ground 
the  widow  of  a  trustee  is  not  dowable,  and  the  widow  of  a 
mortgagor  may  lose  her  right  of  dower  by  a  foreclosure  of  the 
mortgage.  The  nature  and  rights  of  dower  in  estates  held 
as  determinable  fees  or  subject  to  executory  limitations,  as 
it  respects  seisin,  will  be  considered  hereafter,  when  the  sub- 
ject of  what  will  defeat  a  wife's  right  of  dower  comes  to  be 
spoken  of. 

8.  No  particular  length  of  time,  however,  during  which  the 
husband  should  retain  seisin  is  required  by  law,  no  matter  how 
brief  it  is,  if  it  be  for  the  husband's  own  use  and  benefit,  nor 
whether  the  seisin  be  one  in  law  or  in  deed.^  And  this  point 
is  illustrated  by  the  old  case  of  the  execution  of  father  and  son 
from  the  same  cart.  There  the  wife  of  the  son  was  held  dowable 
of  what  had  been  the  father's  estate,  by  reason  of  the  son 
having  been  observed  to  struggle  longer  than  the  father,  where- 

1  Park,  Dow.  37  ;  4  Dane,  Abr.  668. 

2  1  Jarman  on  Wills,  792 ;  Co.  Lit.  241,  n  4  ;  1  Cruise,  Dig.  162  ;  4  Dane,  Abi. 
668;  Park,  Dow.  50;  Jackson  v.  Kip,  3  Halst.  241. 

3  Firestone  v.  Firestone,  2  Ohio  St.  415. 

*  2  Kent,  Com.  39 ;  McClure  i'.  Harris,  12  B.  Mon.  261 ;  McCauley  v.  Grimes, 
2  Gill  &  J.  318 ;  Stanwoorl  v.  Dunning,  14  Me.  290 ;  Gage  v.  Ward,  25  Me.  101 ; 
Douglass  V.  Dickson,  11  Rich.  L.  417. 


CH.  VII.  §  3.]  DOWER.  219 

by  there  was  space  of  time  long  enough  for  the  estate  to  de- 
scend from  the  father  to  the  son,  and  the  wife's  right  of  dower 
to  attach.! 

*9.  But  if  the  seisin  of  the  husband  be  merely  instan-  [*176] 
taneous,  intended  as  a  means  of  accomplishing  some 
ulterior  purpose  in  regard  to  the  estate,  the  husband  being,  as 
it  were,  a  conduit  through  which  the  estate  passes  without  an 
intent  to  clothe  him  with  a  beneficial  interest,  it  would  not  give 
his  wife  any  right  of  dower.^  And  it  matters  not  whether  the 
transaction  consists  of  one  conveyance  or  of  several,  or  whether 
they  are  executed  between  two  parties  only  or  more.^  In 
respect,  therefore,  to  an  instantaneous  seisin,  whether  it  shall 
be  sufficient  to  confer  the  right  of  dower  depends  upon  the 
character  rather  than  the  duration  of  the  seisin.*  Thus  in 
the  case  of  McCauley  v.  Grimes,  above  cited,  the  object  of  the 
conveyance  was  to  effect  a  division  of  the  estate  of  a  person 
deceased  among  his  children,  one  of  whom  held  a  part  of  the 
estate  by  deed,  By  an  agreement  between  H.  and  the  children, 
the  one  who  held  this  deed  conveyed  the  estate  to  H.,  who  at 
the  same  time  executed  bonds  to  the  several  children  for  the 
payment  of  their  respective  shares,  and  secured  the  payment 
thereof  by  a  mortgage  of  the  same  land  ;  it  was  held  that  the 
wife  of  H.  could  only  claim  her  dower  subject  to  this  mortgage. 
So  where  a  purchase  was  effected  by  one,  and  another  ad- 
vanced the  purchase-money  for  the  purchaser,  and  the  ven- 
dor made  a  deed  to  the  purchaser,  who  made  a  mortgage  at  the 
same  time  to  the  one  who  advanced  the  purchase-money  to 
secure  him  the  repayment  thereof,  it  has  been  held  by  the 
courts  of  most  of  the  States,  that  the  seisin  in  the  husband, 
the  purchaser,  in  such  a  case  would  be  an  instantaneous  one, 
which  would  only  give  his  wife  dower  subject  to  such  mort- 
gage.^    The  question  in  these  cases  is  not  confined  to  a  con- 

1  Broughton  v.  Randall,  Cro.  Eliz.  503.     And  see  2  Bl.  Com.  132. 

2  2  Crabb,  Real  Prop.  161;  Stanwood  v.  Dunning,  14  Me.  290;  Wooldridge 
V.  Wilkins,  3  How.  (Miss.)  3(59;  Gully  v.  Ray,  18  B.  Mon.  107. 

8  Hazleton  v.  Lesure,  9  Allen,  24,  26;  King  v.  Stetson,  11  Allen,  409. 

*  McCauley  v.  Grimes,  2  Gill  &  J.  318  ;  Mayburry  v.  Brien,  15  Pet.  39;  Web- 
ster V.  Campbell,  1  Allen,  314  ;  Pendleton  v.  Pomeroy,  4  Allen.  510. 

ft  4  Kent,  Com.  39  ;  Smith  v.  Stanley,  37  Me.  11 ;  Kittle  v.  Van  Dyck,  1  Sand. 
CI).  76  ;  Clark  v.  Munroe,  14  Mass.  351 ;  Mayburry  v.  Brien,  15  Pet.  39  ;  Gilliam 


220  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

veyance  and  mortgage  between  the  same  nominal  parties.  It 
is  rather,  whetlier  the  two  instruments  are  to  be  considered  as 
parts  of  one  and  the  same  transaction,  and  no  space  of  time 
intervenes  between  the  taking  of  and  parting  with  the  estate.^ 
And  such  seems  to  be  the  true  rule  of  law,  although  in  a  case 
in  Kentucky  such  seisin  was  held  sufficient  to  give  the  widow 

of  the  purchaser  dower.^* 
[*177]       *10.  The  cases  above  cited  suggest  what  is  perhaps 

the  best  illustration  of  what  is  intended  by  an  instan- 
taneous seisin  in  the  husband,  which  will  not  give  dower  to 
the  wife,  that  of  a  deed  and  mortgage  simultaneously  made 
in  pursuance  of  an  agreement  entered  into  at  the  time  of 
making  a  purchase  by  the  husband,  and  intended  to  secure  to 
the  vendor  or  some  one  who  advances  the  purchase-money 
for  the  estate,  the  payment  of  the  same.^  Nor  would  it  make 
any  difference  that  the  mortgage  embraced  other  land  with 
that  which  the  mortgagor  has  purchased  of  the  mortgagee.'* 
But  the  burden  of  proof  is  upon  the  party  who  relies  upon 
the  mortsacje  and  deed  constituting  but  one  transaction.'^  In 
such  cases  the  lien  created  by  the  mortgage  takes  precedence 
of  the  right  of  dower  in  the  wife  of  the  purchaser,  although 
the  title  of  the  mortgagee,  like  that  of  a  widow,  is  derived 
from  the  seisin  of  the  husband.  And  in  the  cases  above 
supposed,  the  seisin  of  the  husband  gives  the  wife  a  right 
of  dower   as  against  everybody  but   the  mortgagee  and  his 

*NoTE.  —  There  is  a  case  where,  as  reporteJ,  it  would  seem  tliat  the  court 
overlooked  the  circumstance  of  tlie  purpose  and  character  of  the  seisin  on  the  part 
of  the  husband,  and  merely  regarded  its  duration  as  determining  the  question  of 
how  far  it  was  an  instantaneous  one  in  the  sense  of  the  law,  and  is  therefore  at 
variance  with  every  other  reported  case  that  has  fallen  under  observation  in 
preparing  this  work.     Adams  v.  Hill,  9  Foster  (N.  H),  210. 

V.  Moore,  4  Leigh,  30 ;  Cunningham  v.  Knight,  1  Barb.  399.     But  see  Mills  v. 
Van  Voorhis,  23  Barb.  13-5  ;  Gammon  v.  Freeman,  31  Me.  243. 

1  King  V.  Stetson,  11  Allen,  408;  Boynton  v.  Sawyer,  35  Ala.  497;  Stephens 
V.  Sherrod,  6  Texas.  297  ;  Stow  v.  TiSt,  1-5  John,  462 ;  Lassen  v.  Vance,  8  Cal. 
274. 

2  McClure  v.  Harris,  12  B.  Mon.  261. 

8  Stow  V.  Tifft,  1-5  .Johns.  458  ;  Reed  v.  Morrison,  12  S.  &  R.  18  ;  Holbrook  v. 
Finney,  4  Mass.  566;  Bullard  y.  Bowers,  10  N.  H.  500;  Griggs;;.  Smith,  7  Halst. 
22  ;  Bogie  v.  Rutledge,  1  Bay,  312  ;  Hinds  v.  Ballou,  44  N.  H.  620. 

*  Moore  v.  Rollins,  45  Maine,  4j3.  ^  Grant  v.  Dodge,  43  Maine,  489. 


CH.  VII.  §  3.]  DOWER.  221 

assigns,  so  that  if  the  mortgage  be  discharged  by  the  husband 
in  his  Hfetime,  or  by  his  executor  or  administrator,  she  may 
be  endowed  as  if  it  had  never  existed. ^  But  if  a  purchaser 
pay  a  mortgage  and  have  it  assigned  to  him,  it  does  not  oper- 
ate a  discharge  so  as  to  let  in  the  mortgagor's  widow  to  dower, 
unless,  when  he  became  purchaser,  he  assumed  the  obligation 
of  paying  the  mortgage.  Nor  does  the  recital  in  a  deed  of  an 
estate,  that  the  premises  are  subject  to  a  mortgage,  import  a 
promise  on  the  part  of  the  purchaser  that  he  is  to  pay  such 
mortgage.''^  Or  if  it  be  undischarged  she  may  come  in  and 
avail  herself  of  a  right  to  redeem  the  estate  from  the  mort- 
gage.^ It  was  held  in  South  Carolina,  where  a  husband  had 
given  a  mortgage  to  secure  the  purchase-money  for  land,  and 
had  died  leaving  personal  assets,  that  the  widow  had  a  right 
to  call  on  the  personal  to  discharge  the  mortgage  debt,  and 
thereby  secure  to  her  her  dower  in  the  premises.  And  if  by 
neglect  thus  to  redeem  the  mortgage  the  widow  loses  her 
dower,  she  may  recover  satisfaction  therefor  out  of  the  per- 
sonal estate.*  The  effect  upon  the  dower  of  the  wife  is  the 
same  whether  the  mortgage,  made  as  above  supposed,  were 
for  life  or  in  fee,  since  so  far  as  the  mortgage  has  effect,  it 
conveys  a  freehold,  and  leaves  only  the  reversion  free  from 
incumbrance.^  So  where  a  father  gave  his  son  a  deed  in  fee 
of  an  estate,  who  at  the  same  time  gave  back  to  the  father  a 
deed  of  the  same  land  to  hold  for  the  term  of  his  life,  in 
which  deed  there  was  a  recital  that  if  the  grantor  performed 
the  condition  of  a  certain  bond  the  grantee  should 
not  enter,  it  was  *  held  that  though  it  did  not  amount  [*178] 
to  a  mortgage,  it  did  not  give  the  sun  such  a  seisin  as 
entitled  his  wife  to  dower,  he  having  died  in  the  lifetime  of 
his  father.^  An  instance  somewhat  analogous,  where  the 
right  of  dower  did  attach,  was  where  A  sold  an  estate  to  B, 
subject  to  a  right  in  A  to  repurchase  it,  the  wife  of  B  was 
held  dowable  if  the  transaction  was  not  intended,  and  in  effect 


1  Billiard  r.  Bowers,  10  N.  H.  500;  Klinck  v.  Keckley,  2  Hill,  Ch.  250;  Brown 
V.  Lapliam,  3  Cush.  551.  2  Strong  y.  Converse,  8  Allen,  559. 

■i  Young  V.  Tarbell,  37  Me.  509 ;  Mills  v.  Van  Voorhis.  23  Barb.  125,  133. 
*  Henagan  v.  Harllee,  10  Rich.  Eq.  285. 
5  Moore  v.  Esty,  5  N.  H.  479.  6  Ibid.  7  Chase's  case,  1  Bland,  206, 


222  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

11.  But  in  all  the  cases  above  supposed  of  what  is  deemed 
such  an  instantaneous  seisin  as  not  to  raise  the  right  of  dower, 
the  same  act  that  gives  the  husband  the  estate  must  convey 
it  out  of  him  again,  so  that  as  to  him  it  shall  be  in  transitu 
only.^  Or  the  two  conveyances  to  and  from  the  husband 
must  constitute  in  legal  effect  one  entire  transaction.  This 
would  be  the  case  if  both  instruments  were  executed  at  the 
same  time,  between  the  same  parties,  relative  to  the  same  sub- 
ject-matter,2  And  it  is  immaterial  that  they  bear  different 
dates,  provided  they  are  delivered  at  the  same  time,  which 
may  be  proved  by  parol.^  And  equity  is  disposed  in 
favor  of  a  mortgagee  to  give  effect  to  a  deed  as  having  been 
simultaneously  delivered,  though  not  executed  until  some 
time  after  the  delivery  of  the  original  deed,  where  it  has  been 
done  in  pursuance  of  an  agreement  then  raade.^  Thus  where 
husband  on  receiving  a  deed  agreed  to  secure  the  purchase- 
money  by  a  mortgage  of  the  same  estate,  but  delayed  the 
execution  of  it  in  consequence  of  a  disagreement  as  to  its 
terms  for  ten  months,  and  then  delivered  it,  it  was  still  held 
to  be  a  part  of  the  same  transaction,  and  that  liis  wife  could 
only  claim  dower  out  of  the  equity  of  redemption.^  But  if 
the  claim  of  the  mortgagee  ceases  or  fails  to  grow  out  of  the 
same  transaction  that  gave  the  mortgagor  his  seisin,  the  doc- 
trine of  his  lien  being  prior  to  that  of  the  wife's  dower,  does 

not  apply.  Thus  where  A  sold  to  B,  who  mortgaged 
[*179J  the  estate  back  to  A  to  *  secure  the  purchase-money, 

and  then  got  C  to  pay  the  debt  to  A,  and  the  latter 
discharged  his  mortgage,  and  thereupon  B  at  the  same  time 
gave  a  new  mortgage  to  C  for  the  purchase-money  which 
he  had  paid  to  A,  it  was  held  that  B's  wife  was  entitled  to 
dower  independent  of  the  latter  mortgage.^  So  where  the 
owner  of  land  bargained  with  another  to  sell  him  the  land, 
and  gave  a  bond  conditioned  to  deliver  a  deed  of  the  prem- 

1  2  Bl.  Com.  132 ;   Reed  v.  Morrison,  12  S.  &  R.  18. 

■-'  Stow  V.  Tifft,  15  Johns.  458 ;  Cunningham  v.  Knight,  1  Barb.  399 ;  Moore 
V.  Rollins,  45  Maine,  493. 

3  Mayburry  v.  Brien,  15  Pet.  39;  Reed  v.  Morrison,  12  S.  &  R.  18 ;  Webster 
w.  Campbell,  1  Allen,  314;  Pendleton  v.  Pomeroy,  4  Allen,  510. 

*  4  Kent,  Com.  141.  *  Wheatley  v.  Calhoun,  12  Leigh,  264 

6  Gage  V.  Ward,  25  Me.  101. 


CH.  VII.  §  3.]  DOWER.  223 

ises,  but  before  executing  such  deed  married,  and  afterwards 
made  his  deed  to  the  purchaser  and  took  back  a  mortgage  to 
secure  the  purchase-money  ;  it  was  held  that  his  wife  was 
entitled  to  dower  out  of  the  land  so  conveyed.^ 

12.  But  after  all,  the  seisin  of  the  husband,  in  order  to  in- 
sure dower,  must  be  such  as  to  avail  in  giving  him  an  effect- 
ual estate  of  inheritance.  Thus,  where  the  owner  of  land 
conveyed  it  by  deed  to  the  husband,  who  entered  and  after- 
wards reconveyed  to  his  grantor,  but  neither  of  these  deeds 
was  recorded,  and  the  original  grantor  then  conveyed  the  es- 
tate by  a  deed  which  was  recorded,  to  a  person  who  purchased 
for  a  valuable  consideration,  without  notice  of  such  prior 
conveyance,  it  was  held  that  whatever  seisin  had  been  in  the 
husband  was  defeated  and  rendered  of  no  avail  by  these  trans- 
actions, and  his  wife  could  not  therefore  claim  dower  out  of 
the  estate.^ 

13.  It  is  so  difficult  to  keep  the  line  that  separates  the 
rights  of  dower  at  common  law  and  in  equity  distinct,  that  it 
is  hardly  possible  to  treat  of  one  without  embracing  more  or 
less  of  the  other.  It  may  be  well,  then,  to  speak  in  this  con- 
nection of  a  seisin  in  equity,  such  as  will  give  a  widow  dower 
in  equitable  estates,  where  by  law  they  are  not  subject  to 
such  right.  So  far  as  dower  in  equities  of  redemption  is  con- 
cerned, the  law  is  pretty  well  defined.  In  respect  to  other 
equitable  estates  it  is  easier  to  illustrate  by  decided 

cases  than  to  state  a  principle  which  shall  be  *  gener-  [*180] 
ally  applicable.  Thus  where  the  legal  estate  in  lands 
was  vested  in  trustees  to  convey  to  the  husband  at  a  particu- 
lar time,  which  was  during  or  j^rior  to  the  coverture,  it  was 
held  that  the  wife  should  have  dower  in  the  estate,  upon  the 
principle  that,  in  equity,  what  the  law  requires  to  be  done  is 
regarded  as  if  it  were  done,  and  as  the  conveyance  ought  to 
have  been  made  in  the  husband's  lifetime,  it  should  be  treated 

1  Dimond  v.  Billingslea,  2  Har.  &  G.  264.  In  Kentucky,  in  a  similar  case,  it 
was  held  that  the  wife  of  the  vendee  and  not  the  wife  of  tlie  vendor  was  entitled 
to  dower.  In  the  latter  case  the  vendee  had  been  put  into  possession  before 
marriage,  tliough  the  deed  was  not  given  till  after.  Stevens  v.  Smith,  4  J.  J. 
Marsh.  64.     See  also  Oldham  v.  Sale,  1  B.  Mon.  76. 

2  Emerson  v.  Harris,  6  Met.  475. 


224  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

as  if  it  had  been  made.^  The  same  rule  woidd  apply  if 
the  husband,  by  the  terms  of  the  trust,  had  a  right  to  have 
the  estate  conveyed  to  him  at  any  time  he  chose.^  But  if 
this  right  to  have  conveyance  made  was  the  result  of  contract 
only  between  the  vendor  and  purchaser,  and  to  be  made  on 
the  husband's  request,  it  vi^ould  not  give  the  purchaser's  wife 
a  right  to  dower  if  no  such  request  had  been  made  in  his  life- 
time.^ In  Kentucky  and  Ohio  the  courts  have  held  a  wife 
entitled  to  dower  under  a  somewhat  similar  state  of  facts, 
except  that  the  husband  had  paid  the  full  price  for  the  land, 
the  vendor  having  thereby  become  in  equity,  trustee  for  the 
vendee,  bringing  them  more  nearly  within  the  doctrine  of  the 
above  case  of  Yeo  v.  Mercereau.*  But  if  the  land  were  merely 
bargained  for  by  the  husband,  and  no  deed  had  been  given, 
although  he  had  taken  possession,  his  widow  could  not  claim 
dower.^  Nor  could  she,  if  her  husband  having  such  agree- 
ment or  a  mere  equitable  title  to  land,  have  the  deed  made  to 
a  third  person,  or  even  to  himself  as  trustee  for  a  third  pei*- 
son,^  especially  if  by  the  agreement  the  conveyance  was  to 
be  made  to  the  husband  or  his  assigns,  and  he  had  had  it 
made  to  a  third  party. ^  Where  A.  held  a  contract  for  land 
from  the  State,  and  contracted  with  C.  to  convey  it  to  him, 
and  he  contracted  with  S.  to  sell  it  to  him,  and  S.  conveyed  to 
the  tenant  his  interest  in  the  land  with  covenants  of  title,  and 
the  State  made  a  deed  to  A.,  and  he  made  a  deed  to  C. ;  after 
S.'s  death  his  widow  claimed  dower  in  the  premises.  But  the 
court  held  that  S.  neve.r  had  sufficient  seisin  to  support  the 
claim,  and  that,  if  he  had  any  seisin,  it  was  instantaneous  in 
favor  of  the  tenant.^ 


1  Banks  v.  Sutton,  2  P.  Wms.  715  ;  Otway  v.  Hudson,  2  Vern.  583  ;  2  Crabb, 
Real  Prop.  162. 

2  Yeo  V.  Mercereau,  3  Harris  (N.  J.),  387. 

3  Spangler  v.  Stanler,  1  Md.  Ch.  Dec.  36. 

4  Robinson  v.  Miller,  2  B.  Men.  284;  Smiley  v.  Wright,  2  Ohio,  511 ;  Pugh  v. 
Bell,  2  Mon.  125  ;  Gillespie  v.  Soraerville,  3  Stew.  &  P.  (Ala.)  447. 

6  Pritts  V.  Ritchey,  29  Penn.  St.  71 ;  Barnes  v.  Gay,  7  Iowa,  26. 

6  Heed  v.  Ford,  16  B.  Mon.  114,  117;  Gully  v.  Ray,  18  B.  Mon.  107.  Se6 
Owen  V.  Robbins,  19  111.  545;  Blakeney  v.  Ferguson,  20  Ark.  547;  Welsh  v. 
Buckings,  9  Ohio  St.  331. 

T  Lobdell  V.  Hayes,  4  Allen,  187,  191.  «  Steele  v.  Magie,  48  111.  396. 


CH.  VII.  §  3.]  DOWER.  225 

14.  In  such  case,  however,  it  would  be  competent  for  the 
husband  to  defeat  his  wife's  right  of  dower  by  releasing  or 
extinguishing  his  right,  which  answers  to  seisin  in  equity, 
which  he  could  not  have  done  in  respect  to  his  seisin  of  lands 
at  common  law.  Thus,  in  another  case  in  Kentucky,  where  a 
husband  had  made  a  verbal  contract  for  land  and  had  built 
thereon,  and  afterwards  bargained  it  to  a  third  person,  and 
had  the  deed  from  the  original  vendor  made  directly  to  his 
vendee,  his  wife  was  not  held  dowable.^  It  was  probably 
upon  some  such  principle  that  it  was  held  in  one  case,  that  if, 
before  marriage,  the  husband  purchases  land  and  gives  back 
a  mortgage  for  the  purchase-money,  a  release  of  his  right  of 
redemption  to  the  *  mortgagee  during  coverture  de- 
feats any  claim  of  dower.^  And  in  another,  that,  [*181] 
where  the  condition  of  the  husband's  mortgage  was 
broken  before  marriage  and  he  released  his  riglit  of  redemp- 
tion during  coverture,  it  barred  any  right  of  dower  in  his  wife.^ 
In  the  latter  case  there  was  a  dissenting  opinion  by  one  of  the 
judges,  and  it  is  apprehended  that  in  those  States  where  the 
mortgagor  is  regarded  as  the  holder  of  the  legal  estate  with 
its  incidents,  and  the  interest  of  the  mortgagee  as  a  lien  or 
pledge  only  for  his  debt,  the  right  of  dower  in  such  a  case 
would  attach,  in  respect  to  the  mortgagor's  estate,  the  equity 
of  redemption,  which  he  could  not  by  his  own  deed  alone 
defeat.*  *  The  case  of  Sweetapple  v.  Bindon,^  though  one  of 
curtesy,  furnishes,  by  analogy,  a  strong  case  illustrating  the 
kind  of  equitable  estate  which  will  sustain  curtesy  or  dower 
as  the  law  now  is.     A  devised  X300  to  be  laid  out  in  land, 

*NoTE.  —  The  subject  of  the  wife's  right  to  be  endowed  out  of  estates  purely 
equitable  has  been  somewhat  considered  in  a  former  part  of  this  treatise,  to 
which,  and  the  cases  there  cited,  the  reader  may  be  referred  for  something  more 
on  the  subject  of  what  is  sufficient  to  give  such  an  equitable  seisin  as  will  entitle 
a  widow  to  dower. 

1  Herron  v.  WiUiamson,  Litt.  Cas.  250. 

2  Jackson  v.  Dewitt,  6  Cow.  316.  See  the  same  explained,  Mills  v.  Van 
Voorhis,  23  Barb.  133,  135.     See  also  Reed  v.  Morrison,  12  S.  &  R.  18. 

3  Rands  v.  Kendall,  15  Ohio,  671. 

*  See  Yeo  v.  Mercereau,  3  Harris  (N.  J.),  387;  McArthur  v.  Franklin,  15 
Ohio  St.  507. 

5  Sweetapple  v.  Bindon,  2  Vern.  536. 
VOL.  I.  15 


226  LAW   OP   REAL   PROPERTY.  [BOOK   I. 

and  settled  upon  his  daughter  and  her  children,  and  if  she 
died  without  issue,  to  go  over.  She  married,  had  a  child, 
and  died  without  issue,  before  the  money  was  laid  out.  It 
was  held  that  the  money  should  be  considered  as  land,  and 
the  right  of  curtesy  attached.^ 

15.  This  matter  will  be  again  referred  to  when  the  mode  of 
assigning  dower  comes  to  be  considered.  But  it  may  be 
proper  here  to  remark,  that  in  regard  to  equitable  estates, 
such,  for  instance,  as  that  of  a  cestui  que  trust,  that  may  hap- 
pen which  is  analogous  to  the  loss  of  seisin  by  the  husband 
before  the  wife's  right  of  dower  has  attached  in  estates  at  law. 

If,  in  the  case  supposed,  the  trustee  shall  convey  away 
[*182]    the  estates  in  violation  *  of  the  trust  under  which  he 

held  it,  the  husband,  cestui  que  trust,  must  apply  to 
the  court  and  have  the  purchaser  declared  a  trustee,  or  if  he 
die  before  this  is  done,  he  will  be  considered  as  having  been 
divested  of  his  equitable  seisin,  and  his  wife  cannot  claim  her 
dower.2 

16.  In  recurring  to  dower  in  equities  of  redemption,  it  will 
be  found  that  the  law  upon  the  subject  is  somewhat  peculiar. 
It  has  a  double  aspect ;  as  to  all  the  world,  except  the  mort- 
gagee and  his  assigns,  it  is  as  if  no  mortgage  had  ever  been 
made.  The  mortgagor  has  the  legal  estate  in  the  land.  The 
widow  may  have  her  action  at  law  to  recover  it  with  damages 
for  its  detention,  just  as  if  the  estate  were  unincumbered; 
nor  would  it  be  competent  for  the  tenant  to  resist  her  claim, 
on  the  ground  that  a  stranger  holds  an  outstanding  mortgage 
upon  the  premises,  unless  he  claims  title  through  such  stranger.^ 
But  if  a  tenant  is  sued  in  an  action  to  recover  the  land,  he 
may,  by  a  proper  plea,  set  up  in  defence  to  such  suit  a  seisin  in 
fee  in  a  stranger,  although  he  do  not  claim  under  him  ;  for,  if 
the  demandant  have  no  right,  he  cannot  draw  in  question  the 

1  See  also  the  cases  cited  in  Raithby,  notes  to  the  above  case. 

2  Thompson  v.  Thompson,  1  Jones  (N.  C),  430. 

8  Collins  V.  Torry,  7  Johns.  278  ;  Smith  v.  Eustis,  7  GreenL  41 ;  Whitehead 
V.  Middleton,  2  How.  (Miss.)  692;  Taylor  v.  Fowler,  18  Ohio,  667;  Eaton  v. 
Simonds,  14  Pick.  98;  Brigham  v.  Winchester,  1  Met.  390;  Fay  v.  Cheney,  14 
Pick.  399 ;  Hitchcock  v.  Harrington,  6  Johns.  290  ;  Hastings  v.  Stevens,  9  Fost. 
(N.  H.)  564;  Moore  v.  Esty,  5  N.  H.  479;  Jackson  v.  Dewitt,  6  Cow.  316; 
Young  V.  Tarbell,  37  Me.  509 ;  Savage  v.  Dooley,  28  Conn.  411. 


CH.  VII.  §  3.]  DOWER.  227 

tenant's  riglit.^  Nor  does  it  make  any  difference  in  this  respect 
whether  the  mortgage  was  made  before  her  marriage  or  was  ex- 
ecuted by  her  with  her  husband  during  coverture.  As  against 
the  mortgagee  and  those  cLaiming  under  him,  the  claim  of  a 
widow  where  the  mortgage  is  made  before  marriage,  or  by  her 
during  coverture,  is  equitable  alone.  She  cannot  recover  the 
dower  against  him,  though  in  possession,  by  a  suit  at  law.^ 

17.  If  the  mortgage  shall  have  been  properly  foreclosed,  all 
claim  on  her  part  is  gone.^  And  in  one  case,  where  such  a 
mortgage  was  foreclosed  during  the  life  of  the  husband  by  a 
sale  of  the  premises  under  an  order  of  the  court,  it  was  held 
that  the  wife  could  not  set  up  a  claim  to  any  part  of  the  sur- 
plus over  and  above  the  amount  of  the  mortgage  debt.*  * 

*18.  On  the  other  hand,  if  the  mortgage  shall  have  [*183] 
been  so  paid  or  redeemed  as  to  constitute  no  longer  a 
lien  upon  the  premises,  the  tenant  cannot  avail  himself  of  it, 
though  standing  in  his  own  name,  in  defence  to  the  wife's 
claim  of  dower.^  Whether  a  mortgage  in  any  given  case  is  or 
is  not  a  subsisting  outstanding  lien  and  incumbrance  upon  an 
estate,  so  as  to  affect  the  dower  right  of  the  wife  of  the  mort- 
gagor or  his  assignee,  often  presents  questions  of  great  diffi- 
culty. Sometimes  it  has  been  attempted  to  determine  the 
question  by  inquiring  whether  the  party  who  sets  up  the  mort- 
gage has  obtained  a  property  in  it  by  a  formal  assignment. 
At  other  times  it  has  been  held  imiDortant  that  there  has  been 
a  formal  discharge  or  release  of  the  mortgage  b}^  the  holder 
thereof,  upon  being  paid  the  mortgage  debt.  It  is  apprehended 
that  neither  of  these  is  a  test  which  can  alwaj^s  be  relied  on, 
since  courts  of  equity,  in  which  such  questions  usually  arise, 
will  go  behind  the  form  to  reach  the  substantial  equities  of  the 
parties.^ 

*NoTE.  —  What  will  amount  to  such  a  foreclosure,  will  be  considered  when 
the  subject  of  what  will  bar  dower  is  examined. 

1  Wolcott  V.  Knight,  6  Mass.  419 ;  Steam's  R.  A.  226. 

2  Gibson  v.  Crehore,  3  Pick.  475 ;  s.  c.  6  Pick.  146  ;  Eaton  v.  Simonds,  14  Pick. 
98 ;  Farwell  v.  Cotting,  8  Allen,  211. 

8  Stow  V.  Tifft,  15  Johns.  458 ;  Reed  v.  Morrison,  12  S.  &  R.  18. 
*  Frost  V.  Peacock,  4  Edw.  Ch.  678. 

5  Hitchcock  V.  Harrington,  6  Johns.  290 ;  Wade  v.  Howard,  6  Pick.  492. 

6  Niles  V.  Nye,  13  Met.  135 ;  Simonton  v.  Gray,  34  Me.  60.  See  Newton  v. 
Cook,  4  Gray,  46. 


228  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

18  a.  If  the  purchaser  of  an  estate  which  is  subject  to 
a  mortgage,  pay  it  off  to  save  his  estate  from  forfeiture, 
and  without  any  legal  obligation  on  his  part  to  do  so,  he  may 
stand  on  his  title  as  mortgagee.  And  if  he  has  the  mortgage 
assigned  to  him,  the  widow  of  the  mortgagor,  in  order  to 
claim  dower,  must  pay  him  the  entire  mortgage  debt,  if  he 
requires  it.  If  he  has  the  mortgage  discharged,  she  may,  in 
Massachusetts,  have  her  dower  out  of  the  equity  of  redemp- 
tion, or  may  contribute  her  proportion  of  the  redemption 
money,  and  have  it  set  out  to  her  in  the  whole  estate.  If,  on 
the  other  hand,  the  mortgage  debt  be  paid  out  of  the  property 
of  the  mortgagor,  or  by  the  person  who  owes  the  debt,  it  is  a 
satisfaction  of  the  mortgage,  and  discharges  it,  and  lets  in  the 
widow's  claim  to  dower.  So,  where  the  purchaser  assumes 
to  pay  the  debt  as  his  own,  or  the  mortgagor  when  selling  the 
estate  leaves  enough  of  the  purchase-money  in  the  vendee's 
hands  to  satisfy  the  debt,  and  the  purchaser  pays  it,  the  effect 
on  the  widow's  right  of  dower  would  be  the  same.  Nor 
would  it  make  any  difference  in  this  respect  if,  when  he  paid 
the  debt,  he  took  an  assignment  of  the  mortgage.  He  could 
not  set  it  up  against  her  claim.^ 

19.  If,  therefore,  a  mortgage  has  been  paid  and  satisfied  by 
some  one  whose  duty  it  was  to  pay  it,  by  reason  of  acting  for 
or  holding  under  the  mortgagor,  with  an  agreement  express  or 
implied  to  pay  the  same,  he  could  not  hold  it  as  an  outstand- 
ing title  or  incumbrance  upon  the  land,  although  he  might 
take  ever  so  formal  an  assignment  of  the  instrument  to  himself. 
On  the  other  hand,  where  a  purchaser  of  an  estate  upon  which 
there  is  an  outstanding  mortgage,  in  order  to  protect  his  own 
estate,  yields  to  the  demand  of  the  holder  of  the  mortgage 
and  pays  it,  he  may,  as  against  others  whose  estates  he  has 
thereby  relieved,  be  deemed  an  equitable  assignee  of  the 
mortgage  without  any  formal  assignment,  depending  upon 
the  intention  with  which  this  is  done.^  Whether  the  par- 
ticular case  should  fall  within  one  category  or  the  other 
above  stated,  often  depends  upon  the  circumstances  of  such 

1  McCabe  v.  Swap,  14  Allen,  188  ;  Hatch  v.  Palmer,  58  Me.  272. 

2  James  v.  Morey,  2  Cow.  246  ;  Gibson  v.  Crehore,  3  Pick.  475  ;  Simonton  v. 
Gray,  34  Me.  50 ;  Strong  v.  Converse,  8  Allen,  557 ;  Hinds  v.  Ballou,  44  N.  H. 
619 ;  Toomey  v.  McLean,  105  Mass.  122. 


CH.  VII.  §  3.]  DOWER.  229 

case,  so  that  it  becomes  a  question  of  fact  quite  as  much  as 
of  law,  to  determine  whether  a  mortgage  is  an  out- 
standing incumbrance  or  not.  Some  *  general  prin-  [*184] 
ciples  upon  this  point  have  been  laid  down  by  courts 
which  may  aid  in  determining  the  law  in  any  given  case. 
Thus,  it  has  been  held,  that  if  a  mortgage  is  paid  and  dis- 
charged by  the  mortgagor  or  his  assigns,  it  shall  inure  to  the 
benefit  of  his  widow  in  the  matter  of  dower,  and  her  right 
reviving,  she  may  recover  just  as  if  no  mortgage  had  existed.^ 
So  if  it  be  paid  after  the  husband's  death  by  his  administrator.^ 
It  has  sometimes  been  contended,  that  an  administrator  is 
bound  to  apply  the  personal  assets  of  the  estate  to  relieve 
the  real  estate  from  the  mortgages  upon  it.  But  it  is  not 
necessary  to  settle  the  question  here,  though  it  has  been  held 
that  in  case  of  insolvent  estates,  administrators  are  not  bound 
to  make  such  application  of  the  personal  assets,  the  creditors' 
lien  upon  these  being  paramount  to  the  claims  of  the  widow 
and  heirs.^  As  the  mortgagor,  who  is  supposed  to  have  had 
the  benefit  of  the  mortgage-money,  is,  if  he  discharge  the 
mortgage,  not  allowed  to  call  upon  another  for  contribution, 
having  only  paid  his  own  debt,  so  if  the  mortgaged  estate  is 
bought  by  a  stranger  under  such  circumstances  as  to  show 
that  he  only  paid  for  the  excess  of  its  value  over  the  mort- 
gage, or  so  that  one  part  of  the  estate  satisfies  the  charge 
upon  the  whole,  the  widow  of  the  mortgagor  will  be  let  in  to 
claim  dower  at  law,  if  such  purchaser  shall  obtain  a  discharge 
of  the  mortgage.^  Thus,  where  the  husband's  right  in  equity 
was  taken  and  sold  upon  execution,  and  the  purchaser  paid 
the  mortgage  and  had  it  discharged,  the  wife  had  dower  as 
of  an  unincumbered  estate.^  And  in  the  case  of  Barker  v. 
Parker,^  just  cited,  the  same  consequence  followed  as  to  the 

1  Wedge  V.  Moore,  6  Cush.  8 ;  Bolton  v.  Ballard,  13  Mass.  227 ;  Snow  v. 
Stevens,  16  Mass.  278 ;  Bullard  v.  Bowers,  10  N.  H.  500 ;  Coates  v.  Cheever,  1 
Cow  460 ;  Hitchcock  v.  Harrington,  6  Johns.  290  ;  Collins  v.  Terry,  7  Johns.  278 ; 
Gibson  v.  Crehore,  3  Pick.  475. 

2  Hildreth  v.  Jones,  13  Mass.  525 ;  Mathewson  v.  Smith,  1  E.  I.  22 ;  Rossiter  v. 
Cossit,  15  N.  H.  38;  Hastings  v.  Stevens,  9  Fost.  (N.  H.),  564;  Klinck  v.  Keck- 
ley,  2  HiU,  Ch.  250 ;  Hatch  v.  Palmer,  58  Me.  272. 

'  Gibson  v.  Crehore,  5  Pick.  146.  «  Wedge  v.  Moore,  6  Cush.  8. 

*  Eaton  V.  Simonds,  14  Pick.  98  ;  Barker  v.  Parker,  17  Mass.  564. 
6  Barker  v.  Parker,  17  Mass.  564. 


230  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

wife's  dower,  though  the  mortgage  debt  was  paid  by  a  stranger, 
and  the  holder  of  the  mortgage  released  to  the  mort- 
[*185]  .  gagor.  In  *  another  case  the  husband  gave  a  mort- 
gage to  secure  the  purchase-money  of  certain  lands, 
in  which  his  wife  joined.  He  afterwards  sold  a  portion  of 
these  to  a  third  person,  who  agreed  to  apply  the  purchase- 
money  in  discharging  the  first  mortgage.  The  wife  signed 
this  deed,  but  it  contained  no  words  of  grant  or  release  on 
her  part.  The  purchaser  paid  the  first  mortgage,  and  the 
holder  discharged  it  upon  record ;  and,  on  the  death  of  the 
husband,  it  was  held  that  she  was  entitled  to  dower  against 
this  second  purchaser,  and  that  the  transaction  did  not  oper- 
ate to  give  him  the  rights  of  equitable  assignee  of  the  mort- 
gage.^ In  all  such  cases,  therefore,  if  it  be  the  intention  of 
the  party  paying  a  mortgage  to  retain  it  as  a  lien  upon  the 
land,  he  should  have  it  formally  assigned  to  him  so  that  he 
may  stand  in  the  place  of  the  mortgagee,  if  he  holds  under 
such  circumstances  that  law  or  equity  will  regard  him  as 
assignee.  If,  instead  of  that,  he  actually  cause  the  mortgage 
to  be  discharged,  the  lien  upon  the  estate  is,  with  some  excep- 
tions, gone  and  extinct  as  if  it  never  existed.^ 

20.  Whether  such  a  union  of  the  legal  and  equitable  es- 
tates as  would  arise  if  the  assignee  of  the  mortgagor  acquired 
the  interest  of  the  mortgagee  by  assignment  would  or  would 
not  operate  as  a  merger,  would  depend  upon  the  fact  whether 
the  holder  of  the  two  had  an  interest  to  prevent  the  merger.^ 
In  considering  the  subject  of  merger  where  the  legal  and 
equitable  estates  unite  in  the  same  person,  the  result  above 
stated  is  one  which  is  sustained  by  equity  rather  than  law. 
At  law  such  a  coming  together  of  the  respective  interests  of 
mortgagor  and  mortgagee,  works  a  merger  of  the  mortgagee's 
in  that  of  the  mortgagor,  or  perhaps  more  properly  operates 
as  a  discharge  of  the  mortgage,  especially  if  it  take  place 
during  the  life  of  the  mortgagor,  and  consequently  it  would 

1  Carter  v.  Goodin,  3  Ohio  St.  75. 

2  Russell  V.  Austin,  1  Paige,  Ch.  192  ;  James  v.  Morey,  2  Cow.  246 ;  Gibson  v. 
Crehore,  3  Pick.  475  ;  Freeman  v.  Paul,  3  Maine,  260 ;  Young  v.  Tarbell,  37  Me. 
509;  Hastings  v.  Stevens,  9  Fost.  (N.  H.)  564;  Smith  v.  Stanley,  37  Me.  11; 
Wedge  V.  Moore,  6  Cush.  8 ;  Wade  v.  Howard,  6  Pick.  492. 

3  James  v.  Morey,  2  Cow.  246;  Gibson  v.  Crehore,  3  Pick.  475. 


CH.  VII.  §  3.]  DOWER.  231 

let  in  the  right  of  the  mortgagor's  wife  to  dower  in 
the  estate.^    Whereas  this  rule  is  not  *  inflexible  with  [*186] 
courts  of  equity,  but  will  depend  on  the  intention  and 
interest  of  the  person  in  whom  the  estates  unite.^ 

21.  And  where  the  two  estates  were  subsisting  separately 
at  the  death  of  the  mortgagor,  the  effect  of  a  discharge  of  the 
mortgage,  unless  by  the  executor  or  administrator  of  the 
mortgagor,  or  of  the  union  of  the  two  by  a  redemption  of 
the  mortgage,  would  not  be  to  give  the  wife  dower  as  of  an 
unincumbered  estate.^  And  the  reason  of  this  distinction  is 
this :  During  the  life  of  the  husband,  the  wife  is  not  bound 
to  contribute  towards  the  redemption  of  the  mortgage,  and  is 
not  therefore  to  be  charged  therewith,  whoever  may  redeem. 
But  upon  her  husband's  death,  she  takes  her  interest  in  the 
estate,  if  at  all,  charged  with  the  mortgage,  and  if  any  one 
interested  in  the  estate,  as  heir  or  purchaser,  discharge  or 
redeem  the  mortgage,  he  thereby  acquires  an  equitable  lien 
upon  the  estate,  which  he  may  hold  against  the  widow  till 
she  contributes  her  proportion  of  the  charge  according  to  the 
value  of  her  interest.'*  But  in  either  contingency,  nothing 
but  a  payment  in  fact,  or  an  actual  release  of  the  mortgage, 
will  operate  to  discharge  it  so  as  to  let  in  the  claim  of  dower 
at  common  law.^ 

22.  And  if  the  mortgagee  is  in  possession  of  the  mortgaged 
premises  for  condition  broken,  or  the  purchaser  of  the  equity 
of  redemption  who  has  redeemed  the  mortgage,  the  widow's 
remedy  for  the  recovery  of  her  dower  is  by  a  bill  in  equity 
only,  as  she  cannot  maintain  a  writ  of  dower  until  she  has 
contributed  her  share  of  the  redemption  money,  as  will  be 
hereafter  more  fully  considered.^    The  several  positions  which 

1  Coates  V.  Cheever,  1  Cow.  460 ;  Reed  v.  Morrison,  12  S.  &  R.  18 ;  Runyanu. 
Stewart,  12  Barb.  537 ;  Collins  v.  Torry,  7  Johns.  278 ;  Snow  v  Stevens,  15 
Mass.  278. 

2  Eaton  V.  Simonds,  14  Pick.  98 ;  James  v.  Morey,  2  Cow.  246.  See  post, 
pi.  23. 

»  Hildreth  v.  Jones,  13  Mass.  525. 

*  Eaton  V.  Simonds,  14  Pick.  98 ;  in  which  Popkin  v.  Bumstead,  7  Mass.  491,  is 
explained.  Swaine  v.  Perine,  5  Johns.  Ch.  482  ;  Gibson  v.  Crehore,  5  Pick.  146  ; 
Richardson  v.  Skolfield,  45  Me.  386  ;  Strong  v.  Converse,  8  Allen,  560. 

6  Crosby  v.  Chase,  17  Me.  369;  Farwell  v.  Cotting,  8  Allen,  211. 

6  Van  Dyne  v.  Thayre,  14  Wend.  233  ;  Smith  v.  Eustis,  7  Greenl.  41 ;  Carll 
V.  Butman,  7  Greenl.  102  ;  Cass  v.  Martin,  6  N.  H.  25 ;  Richardson  v.  Skolfield,  sup. 


232  LAW  OF  REAL  PROPERTY.  [uOOK  I. 

have  been  stated  above  are  so  fully  explained  and  illustrated 
in  tlie  following  cases  from  the  Massachusetts  Reports,  that 
liberal  extracts  are  made  from  the  oj)inions  of  the  court,  as 

the  readiest  way  of  defining  the  law  as  now  generally 
[*187]  understood.     In  the  *  first  of  these  the  facts  were 

briefly  these :  A  made  two  mortgages,  one  to  B  and 
another  to  C,  in  both  of  which  his  wife  joined.  The  right  in 
equity  of  A  having  come  to  G  by  sundry  mesne  conveyances, 
G  mortgaged  the  estate  to  the  plaintiff.  B  and  C  having 
taken  possession  of  the  mortgaged  estate,  assigned  their  mort- 
gages to  the  heir  of  A,  who  set  out  dower  in  the  same  to  A's 
widow,  as  if  the  mortgages  had  been  discharged.  The  plain- 
tiff then  sought  to  redeem  from  these  mortgages,  and  the  heir 
offered  to  discharge  them  if  he  would  pay  the  amount  due 
upon  them.  The  plaintiff,  however,  insisted  upon  an  assign- 
ment of  these  mortgages  to  him,  and  that  the  assignment  of 
the  dower  should  be  set  aside.  Upon  a  bill  for  that  purpose, 
it  was  held  that  he  had  a  right  to  have  these  mortgages  as- 
signed to  him,  and  that  he  had  a  right  to  hold  the  estate  until 
the  widow  should  contribute  her  share  of  the  mortgage  debt, 
and  that,  until  she  had  so  contributed,  she  had  no  right  at  law 
to  claim  dower  in  the  premises.^  In  the  other.  Chief  Justice 
Shaw  explains  in  what  cases  and  under  what  circumstances 
a  wife  who  has  joined  with  her  husband  in  a  mortgage,  may 
avail  herself  of  her  right  of  dower  as  against  such  mortgage.^ 
This  will  be  the  case,  1.  Where  the  debt  shall  be  paid  or 
satisfied  by  the  husband,  or  by  some  one  acting  in  his  behalf 
and  in  his  right,  so  that  the  mortgage  is  extinguished,  —  the 
whole  object  and  purpose  in  giving  it  having  been  accom- 
plished. 2.  By  redemption  —  paying  the  debt  herself,  though 
this  can  only  be  enforced  as  a  right  by  a  process  in  equity, 
and  by  tendering  the  payment  of  the  mortgage  debt.  Unless 
one  of  these  shall  have  been  done,  the  demandant  cannot 
maintain  an  action  of  dower  against  any  person  holding  the 
rights  of  the  mortgagee ;  the  only  remedy  is  in  equity.^  In 
order  to  have  a  payment  operate  to  discharge  and  extinguish 

1  Niles  V.  Nye,  13  Met.  135 ;  Rossiter  v.  Cossit,  15  N.  H.  38. 

2  Brown  v.  Lapham,  8  Cush.  561 ;  Strong  v.  Converse,  8  Allen,  559. 

3  Thompson  v.  Boyd,  2  N.  J.  643 ;  Watson  /.  Clendennin,  6  Blackf.  477. 


CH.  VII.  §  3.]  DOWER.  233 

a  mortgage,  it  must  be  made  by  the  husband,  or  out  of  the 
husband's  funds,  or  by  some  one  as  personal  representative, 
assignee,  or  standing  in  some  other  relation  which, 
in  legal  effect,  makes  him  *  mortgagor  and  debtor,  [*188] 
and  one  whose  duty  it  is  to  pay  and  discharge 
the  mortgage  debt.  Whether  a  given  transaction  shall  be 
held,  in  legal  effect,  to  operate  as  a  payment  or  discharge 
which  extinguishes  the  mortgage,  does  not  depend  upon  the 
form  of  words  used,  so  much  as  upon  the  relations  subsisting 
between  the  parties  advancing  the  money,  and  the  party  exe- 
cuting the  transfer  or  the  release,  and  their  relative  duties. 
If  the  money  is  advanced  by  one  whose  duty  it  is,  by  contract 
or  otherwise,  to  pay  and  cancel  the  mortgage  and  relieve  the 
mortgaged  premises  of  the  lien,  —  a  duty  in  the  proper  per- 
formance of  which  others  have  an  interest,  —  it  shall  be  held 
to  be  a  release  and  not  an  assignment,  although  in  form  it 
purports  to  be  an  assignment.  When  no  such  controlling 
obligation  or  duty  exists,  such  an  assignment  shall  be  held  to 
be  an  extinguishment  or  assignment  according  to  the  intent 
of  the  parties,  and  their  respective  interests  in  the  subject 
will  have  a  strong  bearing  upon  the  question  of  such  intent. 
Thus  where  the  assignee  of  the  husband,  an  insolvent  debtor, 
sold  his  equity  of  redemption,  the  mortgagee's  right  also  com- 
ing by  assignment  into  the  same  hands  was  held  not  to  be 
extinguished,  the  vendee  being  under  no  obligation  to  pay 
the  mortgage,  and  the  two  estates  did  not  merge  so  as  to  let 
in  the  debtor's  widow  who  had  signed  the  mortgage  deed, 
to  claim  dower  at  law ;  for  so  long  as  her  outstanding  claim 
between  the  equity  and  the  mortgage  existed,  there  could  be 
no  merger.^ 

23.  It  was  intimated  above,  that  the  question  whether  a 
mortgage  shall  be  regarded  as  extinguished  or  not  by  its  for- 
mal discharge,  may  depend  upon  whether  it  is  done  in  the 
lifetime  of  the  mortgagor  or  not.  Thus  where  A  mortgaged  to 
B,  C,  and  D  successively,  his  wife  joining  in  the  second  only,  D 
paid  up  the  debts  of  B  and  C  during  the  life  of  A,  and  had 
their  mortgages  discharged,  and  then  conveyed  the  whole  es- 

1  Robinson  v.  Leavitt,  7  N.  H.  98  ;  Adams  v.  Hill,  9  Fost.  (N.  H.)  202 ;  Thomp- 
son V.  Boyd,  1  N.  J.  58 ;  a.  c.  2  N.  J.  543  ;  Simonton  v.  Gray,  34  Me.  50. 


234  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

tate  with  warranty  to  the  tenant  ;  in  a  suit  for  dower  at  law,  it 
was  held  that  this  let  in  the  wddow  to  dower.  The  presump- 
tion in  such  case  would  be,  that  the  party  who  thus 
[*189]  redeemed  took  the  *  estate  subject  to  the  prior  charges 
and  paid  for  it  accordingly,  and  assumed  the  discharge 
of  them  as  a  duty.^  So  where  the  mortgage  was  made  to  se- 
cure the  purchase-money,  and  afterwards  the  mortgagor  sold 
the  estate  to  W.  S.,  and  thereupon  the  mortgagee  released  to 
W.  S.  his  interest  in  the  estate,  and  W.  S.  executed  new 
notes  and  mortgage  to  the  same  mortgagee  for  the  amount  of 
the  original  debt,  it  was  held  that  by  discharging  the  first 
mortgage,  the  widow  of  the  first  mortgagor  was  let  in  for 
dower.2  But,  after  all,  it  is  apprehended  that  the  form  of  the 
transaction  or  the  time  of  doing  it  is  not  conclusive,  since  it 
depends  much,  if  not  altogether,  upon  the  intent  with  which 
it  is  done.  If  it  is  the  intent,  on  the  part  of  the  person  pay- 
ing the  mortgage  debt,  to  become  substituted  to  the  place 
and  with  the  rights  of  the  mortgagee,  instead  of  technically 
extinguishing  the  mortgage,  it  would  not  relieve  the  widow 
of  the  mortgagor  from  contributing  her  share  of  the  mort- 
gage debt,  or  making  a  proper  abatement  on  account  thereof.^ 
Where  the  wife  joined  her  husband  in  a  mortgage,  and  the 
husband  having  become  bankrupt,  his  assignee  purchased  and 
took  an  assignment  of  the  mortgage,  and  then  sold  the  estate 
in  parcels  ;  it  was  held  not  to  be  a  discharge  of  the  mort- 
gage, and  that  the  widow  could  not  claim  dower  out  of  the 
estate,  except  by  a  bill  in  equity  and  an  offer  to  redeem  from 
the  mortgage.* 

24.  Although  it  is  not  within  the  intended  scope  of  this 
work  to  go  at  length  into  the  remedy  of  a  wddow  for  the  re- 
covery of  her  dower,  so  far  as  the  mode  of  proof  by  which  she 
is  to  establish  her  right  is  concerned,  there  are  a  few  princi- 
ples in  respect  to  a  legal  presumption  of  seisin  in  the  husband 
which  seem  to  be  appropriate.     If  the  husband  is  in  posses- 

1  Wedge  V.  Moore,  6  Cush.  8.     See  Eunyan  v.  Stewart,  12  Barb.  637. 

2  Smith  V.  Stanley,  37  Me.  11. 

3  Mass.  Gen.  Stat.  c.  90,  §  2 ;  Newton  v.  Cook,  4  Gray,  46;  Pynchon  v.  Les- 
ter, 6  Gray,  314;  McCabe  v.  Bellows,  7  Gray,  148;  Barbour!;.  Barbour,  46  Me. 
9  ;  Toomey  v.  McLean,  105  Mass.  122, 

*  Sargent  r.  Fuller,  105  Mass.  119. 


CH.  VII.  §  3.]  DOWER.  235 

sion  of  lands  claiming  ownership  of  them,  it  is  sufficient  prima 
facie  evidence  of  right  of  dower  in  his  widow. ^  And  where 
A  bought  an  estate  in  the  name  of  his  son,  who  entered  into 
possession  and  died,  it  was  held  that,  though  as  between  the 
son  and  father  there  was  a  resulting  trust  in  favor  of  the 
father  by  implication,^  the  widow  of  the  son  was  entitled  to 
dower,  the  legal  estate  having  been  in  him,  and  the  trust  in 
favor  of  the  father  being  fraudulent  as  against  creditors  and 
purchasers.^  If,  however,  the  possession  of  the  husband  turns 
out  to  be  under  a  contract  of  purchase,  but  no  deed  has  been 
made,  it  has  been  held,  in  Maine,  that  his  wife  cannot  claim 
dower,  although  the  purchase-money  has  been  paid.*  But  in 
North  Carolina  such  a  possession  has  been  held  sufficient  to 
give  the  wife  dower.^  So  a  sufficient  legal  seisin  is 
often  inferred  from  the  fact  that  the  tenant  holds  *  his  [*190] 
title  to  the  estate  mediately  or  immediately  from  the 
husband,  by  a  deed  from  him  or  his  heir.  And  it  may  not  be 
necessarj'-  to  show  that  the  tenant  holds  by  title  derived  from 
the  husband,  any  further  than  that  the  husband  was  once 
seised  and  conveyed  the  estate  by  deed.  Thus,  it  was  held 
that  by  proving  the  execution  and  delivery  of  a  deed  of  the 
premises  to  the  husband,  that  he  was  during  coverture  in  pos- 
session of  them,  and  that  he  aliened  them  during  coverture, 
the  title  of  the  tenant  would  be  presumed  to  be  the  same 
under  which  the  husband  held,  if  no  evidence  of  any  other 
title  on  his  part  is  offered.^  The  rigid  rules  of  law  in  requir- 
ing proof  of  a  better  title  against  a  stranger  in  possession  of 
real  estate,  do  not  apply  between  a  widow  claiming  dower 
and  the  tenant.  If  it  appear  that  the  tenant  holds  by  deed 
from  the  husband,  or  from  his  son  and  heir,  or  by  a  levy  of  a 
fi.  fa.  against  the  husband,  who  held  a  deed  in  fee  of  the 

1  Mann  v.  Edson,  39  Me.  25 ;  Torrence  v.  Carbry,  27  Miss.  697 ;  Carpenter  v. 
Weeks,  2  Hill,  341 ;  Forrest  v.  Trammell,  1  Bailey,  77  ;  Moore  v.  Esty,  5  N.  H. 
479 ;  Knight  v.  Mains,  3  Fairf .  41 ;  Griggs  v.  Smith,  7  Halst.  22 ;  Reid  v.  Steven- 
eon,  3  Rich.  (S.  C.)  66. 

2  Hill,  Trust,  91.    Post,  vol.  2,  p.  *  174. 

3  Batenaan  v.  Bateman,  2  Vern.  436 ;  2  Crabb,  Real  Prop.  163. 

4  Hamlin  v.  Hamlin,  19  Me.  141 ;  Hamblin  v.  Bank  of  Cumberland,  19  Me.  66. 
6  Thompson  v.  Thompson,  1  Jones  (N.  C),  430. 

6  Wall  V.  Hill,  7  Dana,  172;  Carter  v.  Parker,  28  Me.  509  ;  Lewis  i;.  Meserve, 
61  Me.  374. 


236  LAW  OF  REAL  PROPERTY.  [BOOK  1. 

premises,  it  will  be  sufficient  evidence,  if  nncontrolled,  to  es- 
tablish his  wife's  chiim  for  dower.^  But  if  the  tenant  claims 
under  a  deed  from  the  mortgagee,  he  will  not  be  estopped 
thereby,  if  the  widow  of  his  grantor  claims  dower,  to  show 
that  her  husband's  interest  was  only  that  of  a  mortgagee.^ 
Thus,  where  tenant  held  by  virtue  of  a  levy  of  an  execution 
upon  the  land  as  that  of  the  husband,  it  was  sufficient  evi- 
dence of  seisin  of  the  husband  to  sustain  an  action  of  dower.^ 
But  this  doctrine  was  not  held  to  apply  to  a  case  where  the 
execution  creditor,  after  levying  upon  the  debtor's  estate, 
quitclaimed  it  to  another  within  the  time  in  which  the  debtor 
had  a  right  to  redeem  the  same.  If  the  creditor's  wife,  in 
such  case,  claim  dower,  the  tenant  may  show  that  her  hus- 
band's interest,  while  he  held  it,  was  in  the  nature  of  a  mort- 
gage subject  to  the  debtor's  right  of  redemption,  and  not  such 
a  seisin  as  carries  with  it  a  right  of  dower.*  And  in  many 
cases  the  courts  have  gone  much  further  than  to  hold  the 
possession  of  land  acquired  by  title  from  the  husband  prima 
facie  evidence  of  a  right  of  dower  on  the  part  of  his  widow. 
25.  A  tenant  has  been  held  to  be  estopped  to  deny  the 
seisin  of  the  husband,  or  the  husband's  death,  if  the  title  is 
derived  from  his  heir.  Before  considering  how  far  such  a 
position  is  to  be  accepted  without  much  qualification,  it  will 
be  well  to  see  what  the  courts  have  decided  in  respect  to  it. 
Where  the  tenant  held  by  a  deed  from  two  grantors,  one  of 
whom  died  and  his  widow  brought  dower,  it  was  held  that 
the  tenant  could  not  show  by  parol  that  the  interest  and  estate 

of  the  deceased  grantor  in  the  premises  granted  was 
[*191]  less  than  *  one  half,  in  order  to  reduce  the  share  out 

of  which  she  might  claim  her  dower.^  An  heir  is 
estopped  to  deny  the  seisin  of  his  father  of  lands  which  de- 
scended to  him,  to  a  claim  of  his  mother  for  dower  therein.^ 

1  Hitchcock  V.  Harrington,  6  Johns.  290  ;  Dolf  u.  Basset,  15  Johns.  21 ;  Hyat 
V.  Ackerson,  2  Green,  664 ;  Kimball  v.  Kimball,  2  Greenl.  226 ;  Norwood  v. 
Marow,  4  Dev.  &  Bat.  442;  Randolph  v.  Doss,  3  How.  (Miss.)  205;  Embree  v. 
Ellis,  2  Johns.  119;  Collins  v.  Torry,  7  Id.  278;  Bordley  v.  Clayton,  5  Harring. 
154;  Douglass  v.  Dickson,  11  Rich.  (Law)  417. 

■''  Foster  v.  Dwinel,  49  Me.  44. 

8  Cochrane  v.  Libby,  18  Me.  39.  *  Foster  v.  Gordon,  49  Me.  54. 

s  Stimpson  v.  Thomaston  Bank,  28  Me.  259. 

6  Griffith  V.  Griffith,  5  Harring.  5. 


CH.  VII.  §  3.]  DOWER.  237 

And  where  a  tenant  claimed  under  the  heir  of  the  husband, 
it  was  held  that  he  could  not  deny  the  death  or  seisin  of  the 
husband,  in  an  action  by  his  widow  to  recover  her  dower.i 
So  where  the  widow,  as  executrix  of  her  husband's  will,  con- 
veyed the  estate  to  the  tenant,  subject  to  her  right  of  dower, 
it  was  held  that  he  was  estopped  to  deny  the  husband's  seisin.^ 
And  where  she  proved  a  deed  of  the  estate  to  her  husband, 
and  one  with  warranty  from  him,  followed  by  a  deed  from 
his  grantee  to  the  tenant,  it  was  held  sufficient  to  establish 
the  husband's  seisin.^  Where  the  husband  entered  upon  a 
parcel  of  land  other  than  that  described  in  his  deed,  by  mis- 
take, and  died,  and  his  administrator  sold  it  as  his,  and  the 
original  vendor,  in  order  to  make  a  good  title  in  the  purchaser, 
released  to  him,  it  was  held  that  the  tenant  was  not  at  liberty 
to  deny  the  husband's  seisin  against  a  claim  to  dower  in  be- 
half of  his  widow.*  In  another  case  it  was  held  sufficient  for 
her  to  establish  her  husband's  seisin,  to  show  he  was  in  pos- 
session of  the  premises,  and  made  a  deed  of  warranty  of  the 
same,  and  that  the  tenant  claimed  under  him.^ 

26.  It  is  laid  down  as  settled  law  that  if  a  tenant  at  will, 
for  years,  or  for  life,  make  a  feoffment,  the  feoffee  cannot  set 
up  a  want  of  seisin  on  the  part  of  the  feoffor,  in  an  action 
brought  by  his  wife  to  recover  her  dower.^  Nor  would  he  be 
admitted  to  show  that  such  seisin  was  only  colorable,  and  de- 
signed to  defraud  the  creditors  of  him  from  whom  the  hus- 
band  derived  his  seisin.'^  And  where  the  husband  being  seised 
of  a  remainder  expectant  upon  a  life-estate,  mortgaged  the 
land  in  fee,  and  died,  and  his  wife  claimed  dower  against  the 
mortgagee,  it  was  held  that  he  could  not  set  up  a  want  of 
seisin  in  the  husband  against  her  claim.^     But  whether  this 

1  Hitchcock  V.  Carpenter,  9  Jolins.  344 ;  Hitchcock  v.  Harrington,  6  Johns. 
290 ;  Montgomery  v.  Bruere,  1  South.  260. 

2  Smith  V.  Ingalls,  13  Me.  284. 

3  Thorndike  v.  Spear,  13  Me.  91 ;  Davis  v.  Millett,  34  Me.  429. 

4  Hale  V.  Munn,  4  Gray,  132. 

5  Bolster  v.  Cushman,  34  Me.  428;  Bancroft  v.  White,  1  Caines,  18-5 ;  Embree 
V.  ElHs,  2  Johns.  119  ;  Ward  v.  Fuller,  15  Pick.  185 ;  Haines  v.  Gardner,  10  Me, 
883;  English  v.  Wright,  1  Coxe,  437;  Thompson  v.  Thompson,  19  Me.  239; 
Osterhout  v.  Shoemaker,  3  Hill,  519. 

6  Taylor's  case,  cited  9  Johns.  293;  Tud.  Gas.  44. 

1  KimbaU  v.  Kimball,  2  Greenl.  226.  8  Nason  v.  Allen,  6  Greenl.  243. 


238  LAW  OF  EEAL  PROPERTY.  [BOOK  I. 

rests  upon  the  doctrine  of  estoppel  alone,  is  a  question  upon 
which  the  authorities  are  divided. ^  In  some  of  the 
[*192J  eases  where  the  tenant  holds  under  *the  husband,  he 
has  been  held  to  be  estopped,  as  already  stated,  from 
denying  the  husband's  seisin.^  Thus,  where  the  only  title  of 
the  tenant  was  a  deed  of  warranty  from  the  husband,  he  was 
not  permitted  to  show  that  the  husband,  in  fact,  had  no  title 
to  a  part  of  the  premises.  As  the  husband's  deed  was  his 
only  title,  "  he  is  therefore  estopped  from  denying  his  grant- 
or's seisin."  ^  So  where  A  conveyed  to  B  by  deed  of  war- 
ranty, and  upon  the  death  of  B,  his  widow  reljdng  upon  that 
deed  as  evidence  of  her  husband's  seisin,  had  dower  set  out 
to  her,  and  afterwards  A's  wife  brought  her  action  of  dower 
against  B's  wife  and  the  tenants  claiming  under  her,  it  was 
held  that  B's  wife  was  estopped  to  deny  A's  seisin.*  On  the 
other  hand,  it  has  been  held  in  Arkansas,  that  the  vendee  of 
the  husband  is  not  esto^Dped,  in  an  action  to  recover  dower, 
from  showing  affirmatively  a  want  of  seisin  in  the  husband.^ 
In  Maine,  though  the  tenant  who  held  under  the  husband 
was  not  permitted  in  an  action  brought  by  his  grantor's  widow 
to  deny  the  seisin  of  the  husband,  yet  he  was  permitted  to 
deny  that  it  was  such  a  seisin  as  gave  his  widow  a  right  of 
dower.^  So  in  Kentucky  the  tenant,  though  he  purchased 
of  and  entered  originally  under  the  husband,  may  contest  the 
widow's  claim  of  dower  by  showing  that  he  has  acquired  and 
holds  under  a  superior  title  to  that  of  the  husband,  provided 
he  goes  further  and  shows  that  he  was  evicted,  by  act  of  law, 
from  the  seisin  acquired  under  the  husband,  before  he  ac- 
quired the  title  under  which  he  now  claims  to  hold  and  de- 
fendJ  And  in  one  case  in  New  York  the  court  refused  to 
permit  the  tenant  to  defend,  by  showing  that  when  the  hus- 
band conveyed  to  him,  there  was  a  superior  title  in  another, 
which  he,  the  tenant,  had  since  acquired  and  still  held,  unless 
the  seisin   and   possession   derived  from   the   husband   had 

1  Moore  v.  Esty,  5  N.  H.  479.  2  pledger  v.  Ellerbe,  6  Rich.  266. 

8  Wedge  V.  Moore,  6  Cush.  8 ;  Gayle  v.  Price,  5  Rich.  625. 

*  May  V.  Tillman,  1  Mich.  262. 

6  Crittenden  v.  Woodruff,  6  Eng.  (Ark.)  82. 

^  Gammon  v.  Freeman,  31  Me.  243.  ^  Hugley  v.  Gregg,  4  Dana,  68. 


CH.  VII.  §  3.]  DOWER.  239 

been  defeated  by  actual  eviction  of  the  tenant.^  And 
in  New  *  Jersey  it  has  been  held,  that  where  the  hus-  [*193] 
band  conveys  during  coverture,  his  grantee  cannot 
deny  his  seisin.^  The  court,  in  the  case  from  Wendell,  above 
cited,  laid  great  stress  upon  the  analogy  between  the  grantee 
of  the  husband  resisting  the  claim  of  the  grantor's  widow,  and 
a  lessee  contesting  the  title  of  his  lessor,  in  an  action  to  re- 
cover the  premises  on  the  expiration  of  the  lease  ;  and  carried 
the  principle  so  far,  that,  although  the  tenant  purchased  and 
took  a  conveyance  from  one  who  held  the  paramount  and  true 
title,  and  who  had  commenced  an  action  against  him  to  re- 
cover the  premises,  yet  he  was  not  permitted  to  avail  himself 
of  this  unless  he  had  been  actually  evicted.  But  it  is  appre- 
hended that  the  tendency  of  more  recent  cases  has  been  to 
apply  a  more  liberal  rule  in  respect  to  estoppels  in  like  cases. 
Thus  in  Massachusetts  it  has  been  held,  that  a  tenant  need 
not  be  actually  evicted  by  one  having  a  better  title,  in  order 
to  be  allowed  to  deny  that  of  his  landlord.  If  he  has  yielded 
in  good  faith  to  such  better  title  in  order  to  avoid  being  ex- 
pelled, and  the  true  owner  has  entered  and  given  permission 
to  him  to  hold  under  him,  he  may  avail  himself  of  this  in  an 
action  against  him  by  the  original  lessor  to  recover  posses- 
sion.3  So  in  Illinois,  the  grantee  of  a  husband  was  admitted 
to  deny  the  husband's  title  and  seisin,  and  to  show  that  he 
claims  under  another  .title.  While  in  Kentucky  he  may  show 
the  true  nature  of  the  husband's  seisin,  and  that  it  was  not 
such  as  to  entitle  his  widow  to  dower.* 

27.  And  in  a  more  recent  case  in  New  York,  where  in  an 
action  to  recover  dower  of  a  tenant,  to  whom  the  husband 
had  conveyed  the  premises  by  a  grant  in  fee  with  covenants 
of  warranty,  the  tenant  offered  to  show  that  the  husband  had 
only  a  leasehold  estate  in  the  premises,  the  court  held  that  he 
was  not  estopped  to  set  up  this  in  defence.^  The  court  say 
that  for  forty  years  the  settled  doctrine  had  been  that  he  was 
estopped,  but  the  former  cases,  including  that  from  Wendell, 
had  been  overruled  by  the   case  of  Sparrow  v.   Kingman.^ 

1  Bowne  v.  Potter,  17  Wend.  164.  2  Thompson  v.  Boyd,  2  N.  J.  543. 

3  Morse  v.  Goddard,  13  Met.  177. 

*  Owen  V.  Robbing,  19  111.  545;  Gulley  v.  Ray,  18  B.  Men.  114. 

5  Finn  v.  Sleight,  8  Barb.  401.  <>  Sparrow  v.  liingman,  1  Comst.  242. 


240  LAW   OF    REAL   PROPERTY.  [BOOK   L 

And  the  law  of  New  York  may  be  considered  as  now  settled 
accordingly.      Nor   is  there    anything  in  the  ]\Iassachusetts 

cases  inconsistent  with  the  doctrine  of  the  two  last- 
[*194]  cited  cases,  while  *  the  modern  English  cases  seem  to 

be  in  accordance  therewith.^  Nor  will  it  make  any 
difference  whether  the  title  derived  by  the  tenant  from  the 
husband  was  by  a  deed  of  quitclaim  or  warranty  .^ 

28.  The  last  requisite  in  order  to  entitle  a  woman  to  dower 
is  the  natural  death  of  her  husband.  There  was  once  known 
in  England  what  was  called  a  civil  death,  as  when  a  man  be- 
came a  monk,  but  that  did  not  give  his  wife  a  right  to  recover 
dower.^  And  it  is  conceived  that  nothing  answering  to  civil 
death  ever  was  known  to  the  American  law.  The  mode  of 
proving  the  death  of  the  husband,  as  well  as  when  a  legal  pre- 
sumption of  death  would  arise,  comes  more  properly  under  the 
head  of  evidence,  and  is  therefore  omitted  here. 

1  Gaunt  V,  Wainman,  3  Bing.  N.  C.  69. 

»  Kingman  v.  Sparrow,  12  Barb.  201.  «  2  Crabb,  Eeal  Prop.  181. 


CH.  VII.  §  4.]  DOWER.  241 


SECTION  IV. 

HOW  LOST   OR   BARRED. 

1.  By  alienage. 

2.  Forfeiture  for  crime. 

3.  Detinue  of  charters. 

4.  Elopement. 

5.  Divorce. 

6.  Forfeiture  by  conveyance. 

7.  Effect  of  husband's  conveyance. 

8.  Release  by  wife. 

9.  Fine  and  recovery. 

10.  Deed  of  wife. 

11.  Husband  must  join  in  deed. 

12.  Requisites  of  a  sufficient  deed. 

13.  No  release  but  by  deed. 

14.  Rule  of  construing  release. 

15.  Acknowledgment  of  deed. 

16.  Effect  of  avoiding  deed. 

17.  Dower  barred  by  foreclosure. 

18.  Release  to  husband  void. 

19.  Widow,  when  estopped  to  claim  dower. 

20.  When  barred  by  rebutter. 

21.  Barred  by  judicial  sale. 

22.  Barred  by  defeating  seisin. 

23.  Defeated  by  paramount  title. 

24.  Defeated  by  levying  execution. 

25.  Defeated  by  sale  for  debts. 

26.  Seisin  lost  by  condition  broken. 

27.  Determination  of  base  fee. 

28.  Executing  an  appointment. 

29.  Principle  of  dos  de  dote. 

30.  Effect  of  release  of  first  widow. 

31.  When  the  husband's  estate  determines. 

32.  Dower  of  a  conditional  limitation. 

33.  Barred  by  jointure. 

34.  Statute  of  Limitations. 

85.     Barred  by  Dower  Act  of  Wm.  IV. 

36.  Statute  provisions  as  to  bar,  &c. 

37.  Barred  by  eminent  domain. 

The  next  subject  in  order  relates  to  the  manner  in  which  the 
right  of  dower  may  be  lost  or  barred. 

1.  At  common  law,  alienage  on  the  part  of  the  husband  or 
wife  was  a  disability  to  her  claiming  dower.^     By  a  very  early 

1  2  BI.  Com.  131;  2  Crabb,  Real  Prop.  131. 
VOL.  I.  16 


242  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

statute,  if  an  alien  woman  married  a  British  subject  by  the 
king's  license,  she  might  claim  dower.^  And  now  by  the  statute 
7  &  8  Vict.  c.  6Q,  if  an  alien  woman  marry  an  English  subject, 
she  becomes  naturalized.  A  similar  doctrine  now  prevails 
under  the  naturalization  laws  of  the  United  States.  This  dis- 
ability is  done  away  with  by  the  local  statutes  of  several  of 
the  States.^ 

2.  By  the  common  law  also,  the  widow  of  a  convicted 
[*195]  traitor  *  could  not  recover  dower.^  But  it  is  believed 
that  no  such  principle  was  ever  introduced  into  the 
law  of  this  country.*  And  even  in  the  acts  of  confiscation 
passed  by  the  legislatures  during  the  American  Revolution,  the 
rights  of  dower  of  offending  parties  were  excepted.^ 

3.  Under  the  common  law,  if  the  widow  obtained  possession 
of  the  title  deeds  of  her  husband's  estates  and  withheld  them 
from  the  heir,  he  could  raise  a  temporary  bar  to  her  recovering 
her  dower  by  action,  by  pleading,  as  it  was  called,  "detinue 
of  charters,"  so  long  as  she  actually  did  detain  them.^  This 
plea  was  sustained  on  the  ground  that,  as  she  withheld  the 
evidences  of  his  title,  the  heir  was  not  able  to  set  out  what 
should  be  her  just  proportion.  But  such  a  defence  never  ob- 
tained in  this  country,  since  under  our  registration  laws  the 
heir  has  the  means  of  ascertaining  the  land  out  of  which  his 
ancestor's  widow  is  entitled  to  dower.'^ 

4.  By  the  early  statute  of  Westminster  2,^  if  a  wife  elope 
with  another  man  and  live  in  adultery  with  him,  she  thereby 
forfeits  her  dower  in  the  husband's  estate  ;  and  this,  without 
any  formal  divorce,  may  be  shown  upon  the  trial  in  an  action 
for  the  recovery  of  her  dower.^  After  such  an  elopement  the 
husband  is  not  bound  to  receive  her  back  again. ^'^  But  if  he 
voluntarily  receive  her  back  by  what  is  called  a  reconcilement, 
she  will  thereby  be  restored  not  only  to  a  right  of  dower  in  all 
the  lands  of  which  he  had  been  seised  during  coverture  before 

1  Co.  Lit.  31  b,  n.  9.  ^  See  chap.  1. 

3  2  El.  Com.  131.  *  Wms.  Real  Prop.  103,  n. 

5  Stearns,  Real  Act.  287;  Sewall  v.  Lee,  9  Mass.  363;  Cozens  v.  Long,  2  Pen- 
ning. Rep.  559. 

6  2  Bl.  Com.  136. 

7  Stearns,  Real  Act.  310.  «  13  Ed.  L  c.  34. 

9  Tud.  Cas.  51.  ^^  Govier  v.  Hancock,  6  T.  R.  603. 


CH.  V]I.  §  4.]  DOWER.  243 

her  elopement,  but  to  the  lands  which  her  husband  had  bought 
and  sold  during  her  elopement.^  The  leaving  of  her  husband 
against  her  consent  will  not  operate  to  bar  her  dower,  unless 
she  afterwards  voluntarily  commit  adultery.^  Nor 
would  she  *  forfeit  it  by  living  with  a  man  to  whom  [*196] 
she  had  been  married  under  a  mistaken  belief  that  her 
first  husband  was  dead,  if  she  had  good  cause  to  believe  he  was 
dead.^  If,  however,  she  and  her  husband  voluntarily  separate, 
and  while  living  apart  she  commit  adultery,  she  will  forfeit 
her  dower.^  As  this  ground  of  forfeiture  depends  entirely 
upon  the  statute  of  Westminster,  it  is  not  enough  that  she 
commit  adultery;  she  must  have  eloped  from  her  husband,^ 
Where,  therefore,  in  the  absence  of  her  husband,  she  com- 
mitted adultery  at  the  place  of  her  and  her  husband's  home, 
it  was  held  not  to  be  the  ground  of  such  a  forfeiture.^  The 
statute  of  Westminster  has  been  re-enacted  in  substance  in 
several  of  the  States,  as  in  Virginia,  Missouri,  and  North 
Carolina.''  And  it  seems  to  have  been  recognized  as  a  part 
of  the  American  common  law,  where  no  such  re-enactment 
has  been  made  in  terms,^  though  it  has  been  held  not  to  be  in 
force  in  Massachusetts.^  In  New  York,  however,  since  1830, 
such  elopement  and  adultery  would  not  bar  dower  unless 
followed  by  a  divorce  ;  ^'^  nor  in  Delaware,  nor  Rhode  Island. ^^ 
5.  A  divorce  from  the  bonds  of  matrimony  always  defeats 
the  right  of  dower,  unless  it  be  saved  by  the  statute  authorizing 
such  divorce  ;  for,  at  common  law,  in  order  to  entitle  a  widow' 
to  dower,  she  must  have  been  the  wife  of  the  husband  at  the 
time  of  his  decease.^^  It  is  accordingly  provided  in  the  statutes 

1  Co.  Lit.  33  a,  n.  8.  ^  2d  Inst.  434 ;  Coggswell  v.  Tibbetts,  3  N.  H.  41. 

3  2  Crabb,  Real  Prop.  173 ;  1  Cruise  Dig.  175,  176, 
*  Hethrington  v.  Graliam,  6  Bing.  135. 
6  Coggswell  V.  Tibbetts,  3  N.  H.  41 ;  2d  Inst.  435. 
6  Coggswell  V.  Tibbetts,  3  N.  H.  41. 

■^  Stegall  V.  Stegall,  2  Brock.  256  ;  Lecompte  v.  Wash,  9  Mo.  551 ;  Walters  v. 
Jordan,  13  Ired.  361.     See  note  at  end  of  the  chapter. 

8  4  Dane,  Abr.  676;  4  Kent,  Com.  53;  Bell  v.  Nealy,  1  Bailey,  312;  1  Cruise, 
Dig.  156,  n.,  175,  n.     In  Pennsylvania,  Elder  v.  Kiel,  62  Penn.  St.  308. 

9  Lakin  v.  Lakin,  2  Allen,  45. 

10  Reynolds  v.  Reynolds,  .24  Wend.  193 ;  Pitts  v.  Pitts,  52  N.  Y.  593. 

n  Rawlins  v.  Buttel,  1  Houst.  224 ;  Bryan  v.  Batcheller,  6  R.  I.  543. 

12  Bishop,  Mar.  &  Div.  §§  661,  662 ;  2  Bl.  Com.  130 ;  4  Kent,  Com.  54  ;  Waite 
V.  Waite,  4  Barb.  192;  Whitsell  v.  Mills,  6  Ind.  229;  McCraney  v.  McCraney,  5 
Iowa,  232. 


244  LAW   OP   REAL    PROPERTY.  [bOOK   I. 

of  the  States  in  which  such  divorces  are  granted,  that  dower, 
or  some  reasonable  provision  out  of  the  husband's  estate,  shall 
be  enjoyed  by  the  wife,  unless  she   is   the   party  in  fault.^ 

Thus  in  Massachusets,  the  wife  in  such  case  has  dower 
[*197]  precisely  as  *if  h*er  husband  were  dead,  whether  the 

lands  have  been  conveyed  by  him  or  not.^ 

6.  By  the  common  law,  a  widow,  like  other  tenants  for  life, 
forfeited  the  dower  already  set  out  to  her,  by  conveying,  in 
fee,  the  lands  assigned  to  her,  upon  the  feudal  idea  that  by  so 
doing  she  renounced  her  obligation  to  her  superior.-^  And  by 
statute  6  Edw.  I.  c.  7,  it  was  expressly  provided,  that  if  tenant 
in  dower  made  a  feoffment  of  her  lands  to  another,  with  livery 
of  seisin,  of  a  greater  estate  than  she  possessed,  it  worked  a 
forfeiture,  since  the  effect  of  it  was  to  divest  the  reversioner 
of  his  seisin,  and  turned  his  estate  into  a  right  of  entry>  But 
as  by  the  statute  8  &  9  Vict.  106,  §  4,  feoffments  are  no  longer 
deemed  to  have  any  tortious  operation  upon  the  rights  of  others, 
the  statute  6  Edw.  I.  is  virtually  done  away  with.^  And  it  was 
always  competent  for  her  to  convey  so  much  estate  as  she  had.^ 
And  if  her  conveyance  of  a  greater  estate  was  by  deed  taking 
its  effect  from  the  Statute  of  Uses,  it  did  not  work  a  forfeiture. 
Nor  has  the  doctrine  of  forfeiture  by  conveying  a  larger  estate 
than  belonged  to  her,  ever  obtained,  to  any  general  extent,  in 
this  country.'^  Thus,  in  Kentucky,  a  conveyance  by  a  widow 
of  her  dower  lands  in  fee,  by  deed  of  bargain  and  sale,  is  held 
to  work  no  forfeiture.^  By  statute  in  Massachusetts,  the  con- 
veyance by  a  tenant  for  life  of  a  greater  estate  than  he  has,  has 
no  effect  except  to  pass  so  much  estate  as  he  may  lawfully 
convey.^ 

7.  There  were  various  ways  by  which  a  wife  might  bar  her 
inchoate  right  of  dower  during  coverture  by  releasing  the 
same.     But  no   conveyance  by  the  husband  could,  by  the 

1  Bishop,  Mar.  &  Div.  §  663. 

2  Davol  V.  Howland,  14  Mass.  219.  See  note  as  to  statute  provisions  on  the 
subject  at  the  end  of  this  chapter. 

8  Wms.  Real  Prop.  121 ;  4  Kent,  Com.  82. 

■*  4  Kent,  Com.  83;  2  Bl.  Com.  136.  5  Wms.  ReaL  Prop.  122. 

«  2d  Inst.  309;  Wms.  Real.  Prop.  25,  n.  ^  Wms.  Real  Prop.  25,  n. 

8  Robinson  v.  Miller,  1  B.  Mon.  88;  Gen.  Stat.  Kj.  1873,  p.  587. 

9  Gen.  Stat,  c  89,  §  9.     See  ante,  p.  *92,  n.  5. 


CH.  VII.  §  4.]  DOWER.  245 

common  law,  cut  off  her  right  of  dower,  or  charge  it 
with  incumbrances  of  *  his  creation  during  their  cov-  [*198] 
erture,^  so  that  after  his  decease  she  took  her  dower 
lands  discharged  of  all  such  conveyances  or  incumbrances.^ 
And  where  the  husband  made  a  mortgage  in  which  the  wife 
joined,  and  afterwards  released  his  interest  in  the  estate,  it  was 
held  not  to  cut  off  her  right  of  dower  in  the  equity  of  redemp- 
tion.^ The  law  as  to  the  right  of  the  husband  to  cut  off  the 
widow's  right  of  dower  by  his  own  deed,  has  been  essentially 
changed  in  England  and  in  several  of  the  United  States,* as 
will  hereafter  be  shown.  But  still,  if  the  deed  of  the  hus- 
band might  be  avoided  for  usury,  the  interest  of  the  widow 
in  the  estate  is  so  immediate  that  she  may  avail  herself  of 
this,  and  claim  her  dower,  without  waiting  for  his  heirs  to 
avoid  the  conveyance  altogether.*  How  far  the  deed  of  a 
husband,  where  by  law  his  wife  is  only  dowable  of  such  lands 
as  he  dies  seised  of,  shall  be  effectual  to  bar  his  wife's  right  of 
dower  when  made  for  that  purpose,  has  been  differently  held 
by  different  courts.  In  Tennessee,  if  this  was  known  to  the 
purchaser  when  he  bought  the  estate,  it  was  held  that  the 
conveyance,  as  to  her,  was  fraudulent  and  void.  So  in  North 
Carolina,  if  the  land  is  conveyed  by  the  husband  to  his  heirs.^ 
While  in  Vermont  it  was  held  effectual,  though  made  to  the 
heir  or  to  a  grantee  by  the  way  of  a  gratuity.^ 

8.  So  far  as  a  release  by  her  own  act  is  concerned,  the  wife 
might,  from  an  early  period,  bar  her  claim  to  dower  by  join- 
ing with  her  husband  in  the  act. 

9.  The  most  usual  way  of  doing  this  was  by  levying  a  fine 
or  suffering  a  recovery.^     These  are  abolished  by  the 
statute  3  &  4  *  Wm.  IV.  c.  74  ;  and  wives  may  now  [*199] 
convey  their  estates  by  deeds  executed  in  concurrence 

with  their  husbands,  and  acknowledged  in  the  form  required 
by  that  act.^     A  custom  had  long  prevailed  in  London  of 

1  Park,  Dow.  237  ;  Runke  v.  Hanna,  6  Ind.  20, 

2  Park,  Dow.  2B9  ;  2  Crabb,  Real  Prop.  149. 
'  Swaine  v.  Perine,  5  Johns.  Ch.  482. 

*  Norwood  V.  Marrow,  4  Dev.  &  Bat.  442. 

6  Brewer  v.  Connell,  11  Humph.  600 ;  McGee  v.  McGee,  4  Ired.  105. 

6  Jenny  v.  Jenny,  24  Vt.  324.  ^  4  Rent,  Com.  51 ;  2  Bl.  Com.  137. 

8  Wms.  Real  Prop.  189. 


2-i6  LAW  OF  REAL  PROPERTY.  [BOOK  J. 

wives  barring  themselves  of  their  dower  by  joining  with  their 
husbands  in  deeds  of  their  estates,  Mdthout  resorting  to  fines 
or  recoveries.^ 

10.  If  fines  or  recoveries  *  were  ever  resorted  to  in  this 
country  as  a  means  of  barring  dower,  it  must  have  been  to  a 
very  limited  extent,  for,  from  a  very  early  period,  there  has 
existed  a  mode  of  doing  this  by  the  wife  joining  with  the  hus- 
band in  a  deed  containing  proper  words  of  grant  or  release  on 
her  part.2  There  was  an  ordinance  to  that  effect  adopted  by 
the  Massachusetts  colony  in  1641,  which  has  been  regarded  by 
some  writers  as'  the  origin  of  this  as  an  American  usage.^ 

11.  In  order  to  its  operating  as  a  bar,  such  deed  must  have 
certain  requisites.  In  the  first  place,  the  wife  must  have  been 
of  age  wdien  executing  it.^  But  by  statute,  a  wife  of  any  age, 
in  Maine,  may  release  her  dower  by  deed.  In  Minnesota,  Illi- 
nois, and  Indiana,  she  may  do  it  if  eighteen  years  of  age.^  In 
all  the  States,  with  one  or  two  exceptions,  the  husband  must 
join  with  the  Avife  in  the  deed  which  relinquishes  her  right,  in 
order  to  give  it  any  effect  as  a  bar  of  her  dower.^  And  this 
is  true  where  the  wife  of  a  second  husband  executes  a  deed  of 
release  of  dower  in  the  estate  of  her  former  husband.'^     In 

*NoTE.  — Fines  and  recoveries  were  once  in  force  in  some  of  the  States,  but 
not  in  others,  and  are  now  wholly  disused.  Stearns,  Real  Act.  11.  Recoveries 
were  in  use  in  Massachusetts,  but  not  fines.  They  were  both  in  use  in  Maryland, 
but  never  in  Virginia.    Chase's  case,  1  Bland,  229. 

1  2  Crabb,  Real  Prop.  172  ;  Tud.  Cas.  50. 

2  Fowler  v.  Shearer,  7  Mass.  14 ;  1  Bland,  229 ;  Burge  v.  Smith,  7  Fost.  (N.  H.) 
332;  Kirk  v.  Dean,  2  Binn.  341;  Powell  v.  Monson,  3  Mass.  347. 

3  Mass.  Anc.  Chart.  99. 

*  Jones  V.  Todd,  2  J.  J.  Marsh.  359 ;  Oldham  v.  Sale,  1  B.  Mon.  76 ;  Thomas 
V.  Gammel,  6  Leigh,  9 ;  Cunningham  v  Knight,  1  Barb.  399 ;  Priest  v.  Cummings, 
16  Wend.  617  ;  s.  c.  20  Wend.  338;  Markham  v.  Merrett,  7  How.  (Miss.)  437; 
Hughes  V.  Watson,  10  Ohio,  127;  Cason  v.  Hubbard,  38  Miss.  46. 

5  Adams  v.  Palmer,  51  Me.  488;  Wis.  Rev.  Stat.  c.  86,  §  12;  Lyon  v.  Kain, 
36  111.  370;  Hoyt  v.  Swar,  53  III.  139;  1  Ind.  Rev.  Stat.  164 

6  Ulp  V.  Campbell,  19  Penn.  361;  Moore  v.  Tisdale,  5  B.  Mon.  352;  Powell 
V.  Monson,  3  Mass.  353,  354  ;  Shaw  v.  Russ,  14  Me.  432  ;  Stearns  v.  Swift,  8  Pick. 
532 ;  Page  v.  Page,  6  Cush.  196,  overruling  certain  dicta  in  Fowler  v.  Shearer,  7 
Mass.  14;  Jackson,  Real  Act.  326 ;  French  v.  Peters,  33  Me.  396 ;  Davis  v.  Bar- 
tliolomew,  3  Ind.  485;  Dodge  v.  Aycfigg,  1  Beasley,  82;  Williams  v.  Robson,  6 
Ohio  St.  514.  But  by  statute  in  Massachusetts,  she  may  release  her  dower  by 
a  separate  deed  subsequent  to  that  of  her  husband.     Gen.  Stat.  c.  90,  §  8. 

7  Osborne  v.  Horine,  19  111.  124. 


CH.  VII.  §  4.]  DOWER,  247 

New  Hampshire  it  has  been  held  that  she  might  bar  hei  dower 
in  lands,  conveyed  by  her  husband,  by  a  separate  deed  subse- 
quently executed.^  Nor  is  the  above  j)roposition  intended  to 
apply  to  those  States  where  special  powers  are  conferred  by 
statute  upon  married  women  as  to  making  deeds,  if  thereby 
the  rules  of  the  common  law  in  this  respect  have  been 
changed.  *And  where  the  husband  having  conveyed  [*200] 
lands  in  his  lifetime,  his  widow  after  his  death  re- 
leased all  her  right  in  the  estate  to  the  heirs  of  his  grantee,  it 
was  held  to  bar  her  right  of  dower,  though  the  consideration 
was  only  nominal.^ 

12.  It  is  not  sufficient,  in  most  of  the  States,  that  the  wife 
sign  the  deed  with  her  husband,  unless  the  same  contains 
words  of  grant  or  release,  which  she  adopts  or  which  specially 
apply  to  her  interest  in  the  estate.^  Her  deed  in  such  cases 
does  not  operate  by  the  way  of  grant  of  any  title  but  by  the 
way  of  estoppel.  So  that  words  of  release  on  her  part  would 
be  as  effectual  as  any  words  of  grant.^  But  a  release  of 
dower  to  a  stranger  cannot  be  set  up  as  a  bar  to  her  claim 
against  the  tenant  of  the  estate.  Nor  would  it  make  any 
difference,  in  this  respect,  that  the  release  was  made  to  one 
through  whom  the  tenant  claims,  if  the  releasee  had  before 
that  ceased  to  have  any  interest  in  the  estate.^  But  though 
the  interest  of  a  wife  as  a  dowress  is  not  the  subject  of  grant, 
so  long  as  it  is  inchoate,  it  may  be  released  to  the  owner  of 
the  fee.  In  Illinois,  she  may  release  it  by  joining  with  her 
husband  in  a  deed ;  and  where  the  owner  of  land  which  was 
subject  to  a  wife's  right  of  dower,  conveyed  the  same  with 
covenant  of  warranty,  and  then  the  husband  and  wife  re- 
leased her  right  of  dower  in  the  premises  to  the  vendor  and 
covenantor  of  the  tenant,  it  was  held  that  there  was  so  much 

1  Shepherd  v.  Howard,  2  N.  H.  507. 

2  Thatcher  v.  Rowland,  2  Met.  41. 

3  Leavitt  v.  Lamprey,  13  Pick.  383 ;  Catlin  v.  "Ware,  9  Mass.  218 ;  Stevens  v. 
Owen,  25  Me.  94;  Lufkin  v.  Curtis,  13  Mass.  223;  Powell  v.  Monson,  3  Mason, 
349 ;  Hall  v.  Savage,  4  Mason,  273.  See  Westfall  v.  Lee,  7  Iowa,  12 ;  Lothrop 
V.  Foster,  51  Me.  367;  post,  vol.  2,  *555. 

*  Frost  V.  Deering,  21  Me.  156;  Steams  v.  Swift,  8  Pick.  532;  Learned  v. 
Cutler,  18  Pick.  9. 

6  Pixley  V.  Bennett,  11  Mass.  298 ;  Harriman  v.  Gray,  49  Me.  538. 


248  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

of  privity  of  estate  between  the  covenantor  and  the  owner  of 
the  fee,  that  her  release  to  him  inured  to  the  benefit  of  his 
grantee  and  covenantee  to  bar  her  claim  of  dower.^  The  usual 
mode  of  barring  herself  by  deed  is  by  a  clause  of  simple  re- 
lease, as  "  in  token  of  relinquishing  her  right  of  dower  in  the 
granted  premises,"  or  the  like.  But  words  of  grant  may  be 
equally  effective,  although  no  reference  is  made  to  her  right 
of  dower,  eo  nomine.  Thus,  where  the  husband  owned  two- 
thirds  and  the  wife  one-third  of  an  estate  in  fee,  and  they 
joined  in  making  the  deed,  and  this  clause  was  contained  in  it, 
"  in  token  of  our  conveyance  of  all  right,  title,  and  interest, 
whether  in  fee  or  in  freehold  in  the  premises,"  it  was  held 
that  she  was  barred  of  her  right  of  dower  in  the  husband's 
two-thirds.2  And  in  a  case  in  Ohio,  where  the  language  of 
the  deed  was,  "  We  A  &  B  "  (husband  and  wife),  "  do  give, 
grant,"  &c.  the  estate  in  question,  and  this  deed  was  signed 
and  acknowledged  by  both,  it  was  held  to  bar  the  wife's  right, 
though  it  contained  no  words  of  release  of  dower.^  And 
where,  in  another  case,  the  deed  contained  in  its  body  the 
name  of  the  husband  alone,  but  was  signed  and  sealed  by 
them  both,  and  on  the  same  paper,  but  below  her  seal  and  sig- 
nature there  was  a  certificate  of  her  release  of  dower  in  the 
above  premises,  and  they  both  acknowledged  the  deed 
[*201]  before  a  *  notary,  who  certified  that  "  each  acknowl- 
edged that  they  signed,  sealed,  and  delivered  the 
above  instrument  of  mortgage,"  it  was  held  to  be  a  good  re- 
lease of  dower  in  the  premises.*  So,  if  she  join  in  a  deed 
which  is  executed  by  the  attorney  of  her  husband,  it  will  be  as 
effectual  as  if  signed  by  the  husband  himself.  At  least  it  was 
so  held  in  the  Ohio  courts,  and  was  laid  down  as  a  dictum  in 
the  case  of  Fowler  v.  Shearer,  above  cited.^  It  is  not,  however, 
easy  to  reconcile  this  doctrine  with  that  by  which  the  deed  of 
the  wife  derives  its  validity  from  the  concurrence  of  the  hus- 
band in  its  execution,  and  it  may  be  pecuhar  to  Ohio,  where 
there  is  a  statute  upon  the  subject.     The  law  seems  to  be  con- 

1  Robins  v.  Kinsie,  45  111.  364. 

2  Learned  v.  Cutler,  18  Pick.  9.  8  Smith  v.  Handy,  16  Oliio,  236. 
*  Dundas  v.  Hitchcock,  12  How.  256. 

6  Glenn  v.  Bank  of  U.  S.,  8  Ohio,  72 ;  Fowler  v.  Shearer,  7  Mass.  14. 


CH.  VII.  §  4.]  DOWER.  249 

flicting  as  to  the  power  of  married  women  to  act  by  attorney. 
In  Delaware,  it  has  been  held  that  she  could  not  in  that  way 
make  a  deed ;  ^  and  in  Indiana,  that  she  could  not  acknowledge 
it  by  attorney.^ 

13.  An  unsealed  instrument,  though  signed  by  husband  and 
wife  in  the  form  of  a  deed  of  conveyance,  and  containing  a 
clause  of  relinquishment  of  dower,  will  not  bar  her  claim.^ 
The  right  cannot  be  released  or  conveyed  by  parol.*  Nor 
would  her  separate  release,  written  upon  the  back  of  her 
husband's  deed,  bar  her  unless  he  joined  in  it.^ 

14.  And  ordinarily,  courts  do  not  extend  her  release  by  con- 
struction beyond  its  strict  legal  effect.  Thus,  where  the  wife 
by  her  deed  released  dower  to  one  of  two  tenants  in  common 
of  lands,  it  was  held  that  the  other  tenant  in  common  could 
not  avail  himself  of  it  as  a  bar  to  her  claim  against 

him.^  And  the  *  acknowledging  of  a  deed  not  executed  [*202] 
by  her,  will  not  bar  her  claim.'''  In  one  case,  a  wife 
joined  with  her  husband  in  formally  executing  a  deed,  in  which 
there  was  a  blank  left  to  be  filled  by  a  description  of  the  prem- 
ises granted.  Her  husband  inserted  altogether  a  different 
parcel  than  was  intended  when  she  signed  it,  and  delivered  it. 
It  was  held,  that  she  was  not  thereby  barred  of  her  dower  in 
the  premises  described  in  the  deed.  In  other  words,  it  was 
not  a  deed  by  which  she  was  bound.^  So  where  the  deed  of 
indenture  describes  the  wife  as  a  party,  and  recites  that  the 
instrument  witnesseth  that  the  husband  thereby  conveys,  &c., 
while  he  alone  in  terms  conveys  and  covenants,  it  was  held 
not  to  bar  her,  although  she  joined  in  its  execution  and  in 
acknowledging  it.^  In  New  Hampshire,  however,  by  force  of 
immemorial  usage  in  that  State,  if  a  wife  sign  and  seal  a  deed 
with  her  husband,  she  bars  her  dower,  though  it  contain  no 

1  Lewis  V.  Coxe,  5  Harring.  401. 

2  Dawson  v.  Shirley,  6  Blackf.  531.  See  also  Earle  v.  Earle,  1  Spencer,  347 ; 
Sumner  v.  Conant,  10  Vt.  9  ;  Mass.  Gen.  Stat.  c.  89,  §  29  ;  Willard,  R.  Est.  269; 
post,  vol.  2,  p.  *564.     Wis.  Rev.  Stat.  c.  86,  §  13,  gives  the  power. 

8  Manning  v.  Laboree,  33  Me.  343.  *  Keeler  v.  Tatnell,  3  N.  J.  62. 

5  French  v.  Peters,  33  Me.  396.  6  White  v.  White,  1  Harris,  202. 

7  Witter  V.  Briscoe,  8  Eng.  (Ark.)  422. 

8  Conover  v.  Porter,  14  Ohio  St.  455 ;  post,  vol.  2,  p.  *555 ;  Biirns  v.  Lynde, 
6  Allen,  305. 

9  M'Farland  v.  Febiger,  7  Ohio,  194. 


250  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

apt  words  of  release  or  grant  on  her  part.^  In  some  of  the 
States  it  is  not  requisite  that  the  wife  should  acknowledge 
her  deed  in  order  to  give  it  effect  in  the  way  of  bar  of  dower. 
Such  is  the  law  in  Massachusetts,  Maine,  New  Hampshire, 
and  Connecticut.- 

15.  But  in  most  of  the  States  it  is  not  only  necessary  that 
she  should  acknowledge  the  deed,  but  it  must  be  done  in  the 
mode  pointed  out  by  the  statute  of  the  particular  State,  and 
propej-ly  certified  in  order  to  operate  as  a  bar.^  And  great 
strictness  in  this  respect  is  maintained  by  the  courts  ;  and  where 
the  law  requires  a  certificate  of  the  officer  taking  the  acknowl- 
edgment, parol  evidence  of  the  fact  will  not  be  admitted  to 
supply  this.*  The  acknowledgment  by  the  wife  in  Ohio  may 
be  simultaneous  with  that  of  the  husband,  or  done  upon  a 
different  day.^ 

16.  The  question  has  been  more  than  once  raised  as  to  the 
effect  of  a  release  of  dower  by  a  wife  where  the  deed  of  the 
husband,  by  which  she  had  done  it,  was  itself  avoided,  as  by 
creditors  for  instance,  because  of  its  being  fraudulent  as  to 
them.  The  court  of  New  Jersey  were  inclined  to  consider 
her  barred  of  her  claim  as  against  all  persons.^  But  the  court 
of  Massachusetts  in  such  a  case  held  that  she  was  not  barred 

except  as  to  those  who  claim  under  the  deed  as  a 
[*203]  valid  one,  and  *  that  a  stranger  who  did  not  claim 

under  it  could  not  avail  himself  of  her  having  exe- 
cuted it.'''  Where  a  husband  made  a  deed  which  was  fraudu- 
lent as  to  his  creditors,  in  which  his  wife  joined  in  releasing 

1  Burge  V.  Smith,  7  Fost.  (N.  H.)  382;  Dustin  v.  Steele,  7  Id.  431. 

-  1  Am.  Jur.  74. 

3  Kirk  V.  Dean,  2  Binn.  341 ;  Scanlan  v.  Turner,  1  Bailey,  421 ;  Clark  v.  ReQ- 
man,  1  Blackf.  379 ;  Slieppard  v.  Wardell,  Coxe,  452  ;  Rogers  v.  Woody,  23  Mo. 
648  ;  Lewis  v.  Coxe,  5  Harring.  402.  Whether  this  is  necessary  in  Iowa,  quaere. 
Morris  v.  Sargent,  18  Iowa,  99. 

*  Elwood  V.  Klock,  13  Barb.  50. 

5  Williams  v.  Robson,  6  Ohio,  n.  s.  510,  515. 

6  Den  V.  Johnson,  3  Harris,  87. 

'  Robinson  v.  Bates,  3  Met.  40.  See  also  Manhattan  Co.  v.  Evertson,  6  Paige, 
Ch.  457 ;  Woodworth  v.  Paige,  5  Ohio,  n.  s.  70 ;  Richardson  v.  Wyman,  62  Me. 
280;  Mulloney  v.  Horon,  49  N.  Y.  Ill,  117  ;  Harriman  v.  Gray,  49  ke.  537  ;  Mc- 
Farland  v.  Goodman,  22  Am.  L.  Reg.  703 ;  Ridgway  v.  Masting,  23  Ohio  St. 
294.  But  where  the  deed  which  she  signed  was  avoided  by  not  being  duly 
recorded,  she  would  be  barred  by  it.     Morton  v.  Noble,  57  111.  176. 


CH.  VII.  §  4.]  DOWER.  251 

her  dower,  and  the  estate  was  then  reconveyed  to  her,  the 
creditors  having  set  aside  the  conveyance  for  fraud,  it  was 
held  that,  inasmuch  as  her  deed  conveyed  nothing,  it  had  no 
effect  excej)t  by  way  of  estoppel,  and,  having  been  avoided, 
her  claim  to  dower  was  not  thereby  affected  except  as  to 
those  claiming  under  her  deed.  So  the  fraudulent  convey- 
ance by  her  husband  to  her  when  avoided,  did  not  merge  her 
claim  to  dower  in  the  premises,  and  the  same  was  not  thereby 
barred.i  Nor  is  it  difficult  to  perceive  good  reason  why  such 
should  be  the  rule  of  law,  when  it  is  remembered  that  the 
deed  of  the  wife  in  such  case  operates  merely  as  an  estoppel. 
It  conveys  no  interest  or  estate  in  lands,  as  will  be  shown 
more  fully  when  the  nature  of  this  right  of  dower  shall  be 
hereafter  considered.^  And  upon  the  same  principle,  where 
the  grantee  of  the  husband  under  a  deed,  in  which  the  wife 
joined,  sued  the  husband  upon  his  covenant  of  seisin,  and 
recovered  in  the  action,  it  was  held  he  could  no  longer  avail 
himself  of  the  deed  as  a  bar  to  the  wife's  claim  to  dower  out 
of  the  same  premises.  He  had  avoided  the  deed  by  such 
judgment.^  And  where  a  widow,  administratrix,  in  order  to 
settle  a  claim  against  her  husband's  estate,  surrendered  her 
claim  of  dower,  and  the  settlement  was  set  aside,  she  M^as 
remitted  to  her  right  of  dower.* 

17.  From  the  familiar  knowledge  of  the  effect  of  a  fore- 
closure of  a  mortgage  upon  the  rights  of  the  parties  to  the 
same,  it  is  hardly  necessary  to  add,  that  if  a  mortgage  given 
by  the  husband  before  marriage,  or  by  husband  and  wife 
during  coverture,  is  foreclosed,  all  right  of  dower  on  the  part 
of  the  wife  is  thereby  barred.^  But  it  seems  that  in  order  to 
bar  a  wife's  right  of  dower  by  foreclosure  in  New  York,  the 
wife  must  be  made  a  party  to  the  proceedings ;  she  is  not 
bound  by  those  against  her  husband  alone.^     A  different  rule 

1  Malloneyv.  Horon,  49  N.  Y.  Ill,  117;  Harriman  v.  Gray,  49  Me.  537; 
Richardson  v.  Wyman,  62  Me.  280 ;  Ridgway  v.  Masting,  23  Ohio  St.  294. 

2  Green  v.  Putnam,  1  Barb.  600 ;  Moore  v.  New  York,  4  Seld.  110. 

3  Stinson  v.  Sumner,  9  Mass.  143.  *  Pinson  v.  Williams,  23  Miss.  64. 
5  Nottingham  v.  Calvert,  1  Ind.  527  ;  Farwell  v.  Cotting,  8  Allen,  211 ;  Pitts  v. 

Aldrich,  11  Allen,  40. 

*>  Wheeler  v.  Morris,  2  Bosw.  524  ;  Bell  v.  Mayor,  &c.,  10  Paige,  49  ;  Lewis  v 
Smith,  5  Selden,  502;  MiUs  v.  Van  Voorhis,  23  Barb.  134,  186.    But  see  Smith 


252  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

prevails  in  some  of  the  States.^  Such  would  be  the  effect  of 
the  vendor's  enforcing  his  lien  for  the  purchase-money,  or  of 
the  enforcement  of  a  judgment  lien  outstanding  at  the  time 
of  the  marriage.^ 

IT  a.  Although  by  the  foreclosure  of  a  mortgage  made  be- 
fore marriage,  or  in  which  the  wife  joined  if  made  after,  or 
where  the  equity  of  redemption  is  acquired  by  the  husband 
during  coverture,  the  wife's  right  of  dower  is  defeated  and 
extinguished,'^  if  the  husband  before  such  foreclosure  shall 
have  conveyed  his  interest  in  the  estate  by  bankruptcy  or 
otherwise,  the  wife  may  have  a  bill  in  equity  to  redeem  the 
estate  from  the  mortgage  during  the  life  of  the  husband,  and 
thereby  save  the  same  from  forfeiture.  If  she  redeems,  she 
becomes  thereby  an  equitable  assignee  of  the  mortgage.  But 
where  the  husband  purchased  an  equity  of  redemption  which 
was  foreclosed  by  a  sale  under  a  power  in  the  mortgage,  it 
was  held  that  the  wife's  right  in  any  surplus  was  thereby 
cut  off.4 

18.  But  there  is  no  way  in  which  a  feme  covert  at  common 
law  can  bar  her  right  of  dower  by  any  release  made  to  her 
husband.^  Even  a  contract  made  between  herself, 
[*204]  her  husband,  *  and  her  trustee,  releasing  her  claim  of 
dower,  would  not,  if  made  during  coverture,  have  that 
effect.^  A  contract  to  forbear  to  claim  dower  is  not  a  release 
of  it,  nor  will  a  covenant  entered  into  before  marriage,  not  to 
claim  dower,  operate  as  a  release  of  her  claim.'^ 

V-  Gardner,  42  Barb.  356.  There  seems  to  be  an  exception  to  this  rule  if  the 
mortgage  which  is  foreclosed  is  given  for  tlie  purchase-money.  The  wife  would  be 
bound  by  it,  though  done  in  mortgagor's  lifetime,  without  making  her  a  party. 
Bracket  v.  Baura,  50  N.  Y.  8. 

1  See  post,  p.  *596  ;  Davis  v.  Wetherell,  13  Allen,  62. 

2  Bisland  v.  Hevvett,  11  S.  &  M.  164;  Wilson  v.  Davisson,  2  Rob.  (Va.)  384; 
Eobbins  v.  Robbins,  8  Blackf.  174 ;  Ingram  v.  Morris,  4  Barring.  Ill;  Williams 
V.  Woods,  1  Humph.  408;  post,  p.  *266. 

3  Newhall  v.  Lynn  Savings,  &c.,  101  Mass.  428. 

*  Davis  V.  Wetherell,  13  Allen,  60 ;  Burns  v.  Lynde,  6  Allen,  305 ;  Newhall 
r.  Lynn  Savings,  &c.,  sup. 

5  Carson  v.  Murray,  3  Paige,  Ch.  483;  Rowe  v.  Hamilton,  3  Greenl.  63;  Mar- 
tin V.  Martin,  22  Ala.  104. 

6  Townsend  v.  Townsend,  2  Sand.  711. 

^  Croade  v.  Ingraham,  13  Pick.  33;  Hastings  v.  Dickinson,  7  Mass.  153; 
Gibson  v.  Gibson,  15  Mass.  106 ;  Vance  v.  Vance,  21  Me.  364. 


CH.  VII.  §  4.]  DOWER.  253 

19.  It  has  often  been  held  that  a  widow  has  barred  herself 
from  claiming  dower  by  acts  which  have  operated  in  the  way 
of  estoppel,  of  which  instances  will  be  given.  But  these  acts, 
in  order  to  have  that  effect  upon  the  rights  of  a  married  woman, 
must  constructively  amount  to  one  of  the  modes  known  to  the 
law  as  constituting  such  bar,  since  her  right  of  dower  is  not 
derived  from,  nor  is  it  dependent  on,  any  contract ;  nor  would 
she  be  barred  by  any  acts  or  declarations  upon  which  others 
may  have  been  induced  to  act,  although  in  a  matter  of  con- 
tract under  similar  circumstances  she  might  not  be  admitted 
to  aver  against  the  truth  of  her  acts  or  declarations,  when  by 
so  doing  it  would  work  fraud  and  injustice. ^  In  one  case  the 
husband  mortgaged  his  estate  without  the  wife  joining  in  the 
deed.  He  then  conveyed  the  equity  of  redemption  by  deed,  in 
which  his  wife  joined.  Subsequently  the  grantee  in  the  last 
deed  reconveyed  to  the  husband,  and  it  was  held  that  she  could 
only  claim  dower  in  the  equity,  since  by  joining  with  her  hus- 
band in  the  deed  of  the  equity,  she  had  released  and  extin- 
guished all  right  to  the  estate  as  it  originally  existed. ^  But 
questions  of  estoppel  have  most  frequently  arisen  where  sales 
of  estates  have  been  made  after  the  death  of  the  husband,  un- 
der circumstances  involving  some  action  on  the  part  of  the 
widow.  Thus  where  a  widow  was  entitled  to  dower  out  of  an 
equitable  estate  of  her  husband,  which  was  sold  by  his  admin- 
istrator by  order  of  court,  at  which  sale  she  was  present  and 
stated  that  the  estate  was  free  from  any  claim  of  dower  ;  it  was 
held  that  she  was  thereby  estopped  from  claiming  it  against  the 
purchaser,  who  had  bought  the  premises  relying  upon 
her  statement,  although  it  *  was  merely  by  parol.^  In  [*205] 
one  case  the  court  left  it  uncertain  whether  by  her 
merely  standing  by  at  such  a  sale,  and  not  making  known  her 
claim,  she  would  be  estopped  to  urge  it.*  But  the  cases  here- 
after referred  to  do  not  recognize  so  strict  a  rule  of  duty  on 
her  part.  There  must  be  some  unequivocal  act  or  declaration 
on  her  part  which  would  either  render  a  claim  of  dower  on  her 
part  clearly  unjust,  or  subject  her  to  damages  equal  to  its  value 
if  claimed,  where  the  court,  to  avoid  circuity  of  action,  would 

1  Martin  v.  Martin,  22  Ala.  104.  2  Hoogland  v.  Watt,  2  Sandf.  Cli.  148. 

8  Smiley  v.  Wright,  2  Ohio,  511.  *  Heth  v.  Cocke,  1  Eand.  344. 


254  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

refuse  tlie  claim.  Thus  where  the  widow  as  administratrix  of 
her  husband's  estate  sold  lands  under  license  of  court,  and 
orally  declared  they  were  free  of  dower,  and  the  purchaser  went 
on  and  made  improvements  upon  them,  she  was  held  to  be  es- 
topiied.i  But  where  she  was  present  at  the  public  sale  of  the 
husband's  estate  and  made  no  objection  or  declaration,  she  was 
held  not  to  be  estopped.^  Nor  even  where  as  administratrix  she 
sold  the  estate  for  the  payment  of  her  husband's  debts,  but  said 
nothing  upon  the  subject  of  dower.^  But  if  she  had  induced 
the  purchaser  to  act  upon  the  belief  that  she  had  no  claim  of 
dower,  she  might,  perhaps,  be  estopped  from  claiming  it.*  On 
the  other  hand,  where  she  sold  her  husband's  estate  under  a 
defective  power  and  received  the  purchase-money,  she  was  not 
allowed  to  claim  dower  out  of  the  estate  sold.^  So  where  the 
heirs  sold  the  inheritance  by  an  arrangement  with  the  widow 
that  she  should  receive  her  share  of  the  purchase-money,  which 
was  accordingly  paid  to  her,  and  she  gave  a  receipt  for  the 
same  but  signed  no  deed  of  release,  it  was  held  that  she  was 
estopped  from  claiming  her  dower.^  But  where  the  widow  as 
administratrix  in  connection  with  a  co-administrator,  in  order 
to  carry  out  a  contract  of  sale  entered  into  by  the  husband, 
conveyed,  under  decree  of  court,  all  tlie  estate  of  her  hus- 
band and  all  her  own,  after  his  death,  and  signed 
[*206]  *  their  names  to  the  deed,  it  was  held  not  to  pass  or 
affect  her  right  of  dower.^  And  where  commissioners 
under  an  order  of  court  passed  upon  the  application  of  a  widow, 
sold  land  of  the  husband,  but  nothing  was  said  of  dower  in  her 
application,  she  was  held  not  to  be  estopped  from  claiming  it ; 
nor  would  she  be,  though  present  at  the  sale,  and  making  no 
claim  of  dower.^  But  where  as  administratrix  she  sold  her 
husband's  land  by  order  of  court,  and  in  her  deed  covenanted 

1  Dougrey  v.  Topping,  4  Paige,  Ch.  94. 

2  Smith  V.  Paysenger,  2  Const.  Rep.  (S.  C.)  59. 
8  Sip  V.  Lawback,  2  Harris,  442. 

*  Wright  V.  De  Groff,  14  Mich.  167.  5  Reed  v.  Morrison,  12  S.  &  R.  18. 

6  Simpson's  Appeal,  8  Penn.  St.  199  ;  Ellis  v.  Diddy,  1  Smith  (Ind.)  354  ;  s.  c. 
1  Ind.  561. 

7  Shiirtz  V.  Thomas,  8  Penn.  St.  359. 

8  Owen  V.  Slatter,  26  Ala.  547  ;  Tennant  v.  Stoney,  1  Rich.  Eq.  222.     But  see 
Stouey  V.  Bank  of  Charleston,  1  Rich.  Eq.  275. 


CH.  VII.  §  4.]  DOWER.  255 

to  warrant  the  title,  to  avoid  circuity  of  action,  she  was  held  to 
have  thereby  barred  herself  of  dower.^  So  where  the  estate  of 
which  the  husband  died  seised,  was  sold  by  direction  of  the 
court  of  equity  free  from  dower,  for  the  payment  of  his  debts, 
and  the  wife  took  part  in  the  proceedings,  it  was  held  to  bar  her 
dower.2  And  where  the  widow  as  administratrix  sold  her  hus- 
band's estate  and  then  married  the  purchaser,  and  he  sold  the 
estate  by  a  warranty  deed,  in  which  she  joined,  relinquishing 
her  right  of  dower  in  the  premises,  it  was  held  that  she  was 
barred  as  to  her  rights  under  either  husband.^  In  another  case 
the  mortgagee  brought  a  bill  to  foreclose  the  mortgage,  and 
made  the  widow,  as  administratrix  of  the  husband,  a  party  to 
the  suit,  but  said  nothing  of  her  right  as  dowress.  The  estate 
was  sold  under  a  decree  of  the  court,  but  it  was  held  that  she 
was  not  thereby  barred  of  her  dower  therein.* 

20.  A  widow  may  be  estopped  or  rebutted  from  claiming 
dower  by  the  covenants  of  her  ancestor  from  whom  she  has  re- 
ceived assets.  Thus,  the  land  of  A  was  sold  on  execution,  and 
bought  by  B,  who  conveyed  it  with  covenants  of  warranty. 
A's  wife  was  heir  at  law  to  B,  and  on  his  death  received  assets 
by  descent.  A  and  B  having  both  died,  she  sued  for  dower  as 
widow  of  A.     But  the  court  held  that  she  could  not 

claim  it  *  against  the  covenants  of  B,  since  what  she  [*207] 
recovered  as  dower  she  would  have  to  respond  for  as 
heir.^ 

21.  In  some  of  the  States  a  widow  holds  her  right  to  dower 
subject  to  the  right  of  creditors  of  the  husband  to  have  his 
property  disposed  of  for  their  benefit.  Such  is  the  case  in 
Pennsylvania,  where  the  estate  is  sold  by  legal  process  called 
a  judicial  sale.^  So  a  sale  for  taxes  in  Ohio,  if  made  by  a 
proper  officer,  cuts  off  a  widow's  claim  to  dower  in  the  prem- 
ises.'^ But  where  the  husband,  as  an  insolvent  debtor,  con- 
veyed his  estate  to  trustees  to  sell  to  pay  his  debts,  it  was 

1  Magee  v.  Mellon,  23  Miss.  585.  2  Gardiner  r.  Miles,  5  Gill,  94. 

3  Usher  v.  Richardson,  29  Me.  415.  *  Lewis  v.  Smith,  11  Barb.  152. 

5  Torrey  v.  Minor,  1  S.  &  M.  Ch.  489.  See  Bates  v.  Norcross,  14  Pick.  224 ; 
Russ  V.  Perry,  49  N.  H.  547. 

6  Kirk  V.  Dean,  2  Binn.  347  ;  Reed  v.  Morrison,  12  S.  &  R.  18  ;  4  Kent,  Com. 
41. 

'  Jones  V.  Devore,  8  Ohio,  430. 


256  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

held  that  such  sale  woiilcl  not  bar  the  wife's  dower  as  if  made 
by  the  sheriff  or  administrator,  or  the  like.^  But  in  Massa- 
chusets,  Delaware,  Illinois,  and  Tennessee,  the  claims  of  cred- 
itors are  subordinate  to  that  of  dower.^  And  where  in  New 
Jersey  the  interest  of  the  mortgagor  was  sold  after  his  death 
by  order  of  court,  his  wife  was  held  to  be  entitled  to  dower 
out  of  the  surplus,  after  satisfying  the  mortgage.^  The  right 
of  widows  to  dower  out  of  the  surplus  of  estates  which  have 
been  sold  by  order  of  court  for  special  purposes,  will  be  fur- 
ther explained  when  the  mode  of  assigning  dower  is  consid- 
ered. 

22.  The  necessity  of  seisin  in  the  husband  has  been  already 
considered  as  a  necessary  element  of  the  right  of  dower.  The 
effect  of  defeating  this  seisin  upon  a  widow's  right,  presents 
interesting  questions,  and  some  of  them  of  considerable  diffi- 
culty. 

23.  If  the  seisin  of  the  husband  be  defeated  by  a  paramount 
title  and  right  of  seisin  which  has  its  origin  prior  to  that  of  the 
husband,  it  defeats  with  it  the  right  of  dower  m  the  wife  or 
widow.  Thus,  if  the  seisin  of  the  husband  is  wrongful,  as 
that  of  a  disseisor,  and  the  rightful  owner  regain  his  seisin 
after  the  husband's  death,  the  dower  of  the  widow  will  be 
defeated.'* 

24.  So  where  the  husband's  land  at  the  time  of  his  mar- 

riage was  under  attachment,  and  was  levied  upon  dur- 
[*208J  ing  coverture,  *it  was  held  that  his  seisin  was  thereby 

defeated  at  a  period  anterior  to  the  marriage,  and  his 
widow's  right  of  dower  thereby  destroyed.^  But  in  Indiana 
her  claim  to  dower  is  paramount  to  a  builder's  lien  upon  land 
of  the  husband.^ 

25.  So  if  lands  which  have  descended  to  an  heir  are  sold 
for  payment  of  the  ancestor's  debt,  or  by  an  executor,  under  a 

1  Keller  v.  Michael,  2  Yeates,  300 ;  Eberle  v.  Fisher,  13  Penn.  St.  526. 

2  Stinson  v.  Sumner,  9  Mass.  149  ;  Griffin  v.  Reece,  1  Harring.  508 ;  Sisk  v. 
Smith,  1  Gilm.  503 ;  Coombs  v.  Young,  4  Yerg.  218.  So  also  in  Delaware, 
Lewis  V.  Coxe,  5  Harring.  403. 

3  Hinchman  v.  Stiles,  1  Stockt.  361,  454. 

*  Tud.  Cas.  44  ;  2  Crabb,  Real.  Prop.  165. 

5  Brown  v.  Williams,  31  Me.  403 ;  Sanford  v.  McLean,  3  Paige,  Ch.  117. 

6  Bishop  V.  Boyle,  9  Ind.  169. 


CH.  VIT.  §  4.]  DOWER.  257 

power  in  the  will  of  the  testator,  the  seisin  of  the  heir  or 
devisee,  although  completed  by  entry,  will  thereby  be  di- 
vested, and  the  right  of  dower  in  his  wife  defeated. ^ 

26.  The  same  effect  would  follow  if  the  husband  is  evicted 
during  coverture  by  title  paramount,  or  if,  his  estate  being  one 
upon  condition,  the  grantor  or  donor  enters  for  a  breach  of 
the  condition  and  regains  his  original  seisin.^  In  one  of  the 
cases  cited,  Beardslee  v.  Beardslee,  the  tenant  for  life  leased 
to  the  remainder-man  in  fee,  for  the  term  of  the  life  of  the 
lessor.  Ordinarily,  the  union  of  the  particular  estate  with 
the  inheritance  in  remainder  or  reversion  would  operate  to 
give  the  wife  of  the  remainder-man  dower  by  way  of  merger 
or  surrender.  But  in  this  case  the  lease  was  upon  condition 
that  the  rent  should  be  paid,  which  the  lessee  having  failed 
to  perform,  the  lessor  entered  and  defeated  his  seisin  and 
estate,  and  with  it  the  right  of  dower  in  his  wife. 

27.  So  where  the  husband  is  seised  of  a  base  or  a  determi- 
nable fee,  and  the  same  is  determined  by  the  happening  of  the 
event  upon  which  it  is  limited,  the  right  of  dower  on  the  part 
of  his  wife  or  widow  thereupon  ceases.^ 

28.  Upon  this  principle,  the  case  of  Ray  v.  Pung  was  de- 
cided.* Lands  were  conveyed  to  A  B  and  his  heirs  in  trust 
for  such  uses  as  C  D  should  by  deed  appoint,  and  in  the  mean 
time  and  in  default  of  such  ai^pointment,  to  C  D  in  fee.  C  D 
then  had  a  wife,  and  afterwards  by  deed  appointed 

the  estate  *  to  another  in  fee,  and  it  was  held  that  his  [*209] 
wife  thereby  lost  her  right  of  dower.^  But  if  such 
deed  of  appointment  had  not  been  executed,  his  wife  might 
have  claimed  her  dower  in  the  estate.  Thus,  where  A,  for  a 
consideration  paid  by  B,  conveyed  lands  to  a  trustee  in  trust 
to  the  use  of  B  and  his  heirs,  they  to  possess  the  same,  and  in 
trust  to  convey  the  same  to  such  person  as  B  should  by  will 

1  Greene  v.  Greene,  1  Ohio,  249 ;  Weir  v.  Tate,  4  Ired.  Eq.  264  ;  Mitchell  v. 
Mitchell,  8  Penn.  St.  126. 

2  2  Crabb,  Real  Prop.  166  ;  Beardslee  v.  Beardslee,  5  Barb.  324  ;  Northcutw. 
Whipp,  12  B.  Mon.  72 ;  Com.  Dig.  "  Dower,"  A.  5 ;  Perkins,  §§  311,  312. 

3  2  Crabb,  Real  Prop.  166  ;  Seymour's  case,  10  Rep.  96  ;  Com.  Dig.  "  Dower," 
A.  5. 

*  Ray  V.  Pung,  5  B.  &  Aid.  561. 
6  4  Kent,  Com.  51 ;  1  Atkinson,  Conv.  277. 
vol..  I.  17 


258  LAW   OF   REAL   PROPERTY.  [bOOK   1. 

or  in  writing  appoint,  and  B  died  without  having  made  any 
such  appointment,  it  was  held  that  the  wife  might  have  dower, 
on  the  ground  that,  under  the  Statute  of  Uses,  B  took  a  qual- 
ified or  determinable  fee,  but  one  which  had  not  been  deter- 
mined.i 

29.  Out  of  the  doctrine  that  a  widow's  right  of  dower  may 
be  defeated  by  avoiding  the  seisin  upon  which  it  depends, 
grows  the  familiar  maxim,  Dos  de  dote  peti  nan  debet,  which  is 
American  as  well  as  English  law.^  The  application  of  this 
doctrine  may  be  illustrated  in  this  way.  Upon  the  death  of 
the  owner  of  the  land  in  fee,  it  passes  at  once  by  descent  or 
devise  to  his  heir  or  devisee,  and  carries  with  it  such  a  seisin 
as  gives  the  wife  of  such  heir  or  devisee  a  right  of  dower  in 
the  premises.  The  ancestor  or  devisor  may  have  left  a  widow 
who  is  entitled  to  dower  out  of  the  land,  but  until  she  has  it 
set  out,  the  existence  of  such  a  right  does  not  affect  that  of 
the  wife  of  the  heir  or  devisee,  and  if  he  dies  she  may  claim 
dower  out  of  the  whole  estate.^  As  will  be  more  fully  shown 
hereafter,  the  estate  of  a  dowress,  as  soon  as  her  estate  is  set 
out  to  her,  is  considered  as  a  continuation  of  the  husband's 
estate,  resting  upon  his  seisin,  there  being,  in  contemplation 
of  law,  no  interval  of  time  or  estate  between  that  of  the  hus- 
band and  the  dower  estate  of  his  wife.  If,  therefore,  the 
widow  of  the  ancestor  or  devisor  sees  fit  at  any  time  to  enforce 
her  right  and  to  have  her  dower  assigned,  it  at  once  relates 
back  and  cuts  off  the  seisin  of  the  heir  or  devisee  as  to  so 
much  of  the  estate,  and  converts  his  interest  into  that  of  a 

reversion  expectant  upon  her  death,  and  with  it  de- 
[*210]  stroys  the  estate  in  *  possession  which  he  may  have 

enjoyed  in  the  interim,  as  if  it  had  never  existed.  If, 
then,  he  were  to  die  in  the  life  of  the  last-named  dowress,  his 
widow  could  not  claim  dower  for  want  of  a  sufficient  seisin 
on  his  part  during  coverture.'*  If,  before  the  widow  of  the 
ancestor  should  have  her  dower  assigned,  the  heir  were  to 

1  Peay  v.  Peay,  2  Rich.  Eq.  409.  2  4  Dane,  Abr.  671. 

»  Elwood  V.  Klock,  13  Barb.  50 ;  1  Cruise,  Dig.  164 ;  Hitchens  v.  Kitchens,  2 
Vern.  405 ;  Geer  v.  Hamblin,  1  Greenl.  54 ;  Robinson  v.  Miller,  2  B.  Mon.  288. 

*  Co.  Lit.  31  a  ;  Parli,  Dow.  155  ;  Geer  v.  Hamblin,  1  Greenl.  64;  Dunham  v. 
Osborn,  1  Paige,  Ch.  634 ;  Cook  v.  Hammond,  4  Mason,  485. 


CH.  VII.  §  4.]  DOWER.  259 

die  and  his  widow  should  have  her  dower  assigned  to  her, 
and  then  the  first-mentioned  widow  were  to  have  hers  assigned 
in  the  same  land,  it  would  defeat  the  first  assignment.  Nor 
could  the  wife  of  the  heir,  if  he  dies  leaving  the  widow  of  his 
ancestor,  have  dower  in  the  lands  set  out  to  her,  after  the 
death  of  the  latter,  because  her  husband,  by  construction  of 
law,  never  had  anything  in  them  but  a  reversionary  interest.^ 
But  if  the  heir  in  the  case  above  supposed  had  purchased  the 
estate  of  his  ancestor  in  his  lifetime  and  married,  and  the  an- 
cestor's widow  after  his  death  should  have  her  dower  assigned 
in  the  granted  premises,  it  would  not  have  the  effect  to  defeat 
the  seisin  acquired  by  the  deed,  but  would  only  be  an  inter- 
ruption of  that  seisin  during  the  life  of  the  elder  dowress. 
Or  if  before  dower  had  been  set  off  to  the  elder  dowress,  the 
purchaser  had  died,  and  his  own  widow  had  been  endowed 
out  of  the  same,  the  assignment  of  dower  to  the  former  would 
operate  to  interrupt  the  enjoyment  of  the  latter  of  her  dower 
during  the  life  of  the  former,  but  no  longer.  Or  if  the  pur- 
chaser had  died  during  the  life  of  the  ancestor's  widow  and  after 
her  dower  had  been  assigned,  the  widow  of  the  purchaser  would 
be  entitled  to  dower  out  of  the  remainder  of  the  estate  to- 
gether with  dower  out  of  the  reversion  of  that  part  of  the 
estate  set  to  the  ancestor's  widow.^  *  In  the  first  of 
the  cases  above  supposed,  the  *  doctrine  dos  de  dote  [*211] 
prevailing,  the  widow  of  the  ancestor  had  her  estate 
as  a  continuance  of  her  husband's  as  if  there  had  been  no  in- 
termission between  them.  In  the  others  the  purchaser  had, 
acquired  a  seisin  in  the  life  of  the  ancestor,  and  hers  could 
only  go  back  to  his  death.  A  reported  case  will  serve  to 
illustrate  this  matter  further.     A  husband  died,  leaving  a 

*NoTE.  —  In  the  case  of  Bear  v.  Snyder,  11  "Wend.  692,  the  court  seem  to 
have  overlooked  the  distinction  that  the  second  widow  is  entitled  to  dower  out 
of  the  reversion  of  the  land  set  out  to  the  first,  where  the  husband  of  the  former 
takes  by  purchase,  but  not  where  he  takes  by  descent. 

1  Reynolds  v.  Reynolds,  5  Paige,  Ch.  161 ;  Safford  v.  Safford,  7  Paige,  Ch. 
259  ;  4  Kent,  Com.  8th  ed.  65,  n. 

2  4  Dane,  Abr.  663 ;  1  Roper,  Hus.  &  Wife,  382 ;  Park,  Dow.  166  ;  1  Cruise, 
Dig.  164  ;  Bastard's  case,  4  Rep.  122  ;  Geer  v.  Hamblin,  1  Greenl.  64;  Manning 
V.  Laboree,  33  Me.  343 ;  Dunham  v.  Osborn,  1  Paige,  Ch.  634. 


2G0  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

wife  and  six  children.  One  of  these,  a  son,  married  and  died 
in  the  life  of  his  mother,  and  it  was  held  that  his  widow  could 
claim  dower  in  only  one  sixth  of  two  third  parts  of  the  fa- 
ther's estate.^  But  in  the  cases  supposed  above,  if  the  widow 
of  the  ancestor  or  of  the  vendor  had  had  her  dower  set  out  in 
the  premises  before  the  heir  or  purchaser  had  married,  and 
he  were  to  marry  and  die  in  her  lifetime,  his  widow  could  not 
claim  dower.  The  seisin  which  he  had  acquired  before  dower 
had  been  set  out  as  supposed  would  not  avail  him,  not  having 
existed  during  their  coverture,  and  as  soon  as  it  was  set  out 
his  estate  was  converted  into  a  reversion  which  could  not 
give  his  own  widow  dower.^ 

30.  The  cases  do  not  seem  to  be  uniform  upon  the  subject, 
how  far  the  widow  claiming  under  the  elder  title  must  have 
proceeded  in  having  her  dower  assigned  to  her,  to  affect  the 
right  of  the  younger  widow  to  have  dower  out  of  the  entire 
estate.  The  question  has  been  raised  where  the  tenant  has 
sought  to  bar  the  younger  widow  by  interposing  the  right  of 
the  elder  to  dower.  In  one  case  T.  L.  conveyed  lands  to  S.  L., 
who  conveyed  to  the  tenant.  After  T.  L.'s  death,  his  widow 
sued  for  her  dower  and  obtained  judgment,  and  then  released 
to  the  tenant.  Then  the  widow  of  S.  L.,  he  having  died,  sued, 
claiming  dower  out  of  the  whole  estate.  But  it  was  held  that 
she  could  only  have  it  out  of  two  thirds  of  the  estate  exclud- 
ing the  third  of  which  the  first  was  dowable.^    But  where  the 

first  of  two  widows,  in  the  case  supposed,  released  to 
[*212]  the  tenant  her  *  right  before  she  had  taken  measures 

to  have  her  dower  assigned,  it  was  held  to  be  no  bar 
to  the  second  claiming  dower  out  of  the  entire  estate,  since 
by  the  release  of  the  first  her  right  was  simply  extinguished, 
and  no  one  could  set  it  up  against  the  claim  of  the  second.* 

31.  To  the  extent  already  defined,  it  is  not  understood  that 
there  is  any  difficulty  in  determining  how  the  right  of  dower 
is  affected  by  the  seisin  upon  which  it  depends  being  defeated, 
as  in  case  of  a  base  fee,  or  an  estate  upon  condition,  and  the 

1  In  matter  of  Cregier,  1  Barb.  Ch.  598. 

'  Park,  Dow.  156 ;  lleynolds  v.  Reynolds,  5  Paige,  Ch.  161. 

8  Leavitt  r.  Lamprey,  13  Pick.  382. 

*  Elwood  V.  Klock,  13  Barb.  50.     See  also  Atwood  v.  Atwood,  22  Pick.  283. 


CH.  VII.  §  4.]  DOWER.  261 

like.  But  there  is  a  class  of  cases  where  what  at  first  sight 
might  seem  to  be  an  inconsistent  doctrine  is  applied.  Thus, 
in  the  familiar  case  of  tenant  in  tail  dying  without  issue,  al- 
though the  estate,  as  one  of  inheritance,  is  determined,  and 
the  remainder  over  upon  such  a  contingency  takes  eifect,  yet, 
it  having  been  an  estate  of  inheritance  in  the  tenant,  his 
widow  if  he  dies  will  be  entitled  to  dower,  it  being  by  impli- 
cation of  law  annexed  to  sucli  an  estate  as  an  incidental  part 
of  it,  a  portion  of  the  quantity  of  enjoyment  designated  by 
the  terms  of  the  limitation  itself.^  And  the  doctrine  is  broadly 
laid  down  by  writers  upon  the  subject,  that  wherever  the  hus- 
band is  seised  during  coverture  of  such  an  estate  as  is  in  its 
nature  subject  to  the  attachment  of  dower,  the  right  of  dower 
will  not  be  defeated  by  the  determination  of  that  estate  by 
its  regular  and  natural  limitation,  as  in  the  case  of  tenant  in 
tail  dying  without  issue,  or  tenant  in  fee  dying  without  heirs, 
whereby  tlie  estate  escheats.^ 

32.  And  this  class  of  cases  has  given  rise  to  much  ingenious 
speculation  and  grave  diversity  of  opinion,  where  the  estate 
of  the  husband  is  one  of  inheritance,  but  ceases  at  his  death 
by  what  is  called  a  conditional  limitation.  This  may  be  illus- 
trated by  example,  although  the  nature  of  executory  estates 
may  not  yet  have  been  explained.  It  should  be  borne  in  mind 
that  the  distinction  between  estates  upon  condition 
which  have  already  *  been  spoken  of,  and  conditional  [*213] 
limitations,  is  that  the  former  can  only  be  defeated  by 
the  grantor  or  his  heirs  entering  for  condition  broken,  and 
defeating  the  estate  ;  so  that,  notwithstanding  the  breach,  the 
estate  and  those  dependent  upon  it  remain  unaffected  until 
such  entry.  In  case  of  conditional  limitations,  however,  the 
estate  is  so  limited  bj  the  terms  of  the  grant  or  devise  creat- 
ing it,  that  upon  the  happening  of  some  condition,  the  estate 
ipso  facto  ceases,  and  passes  at  once  over  to  some  other  per- 
son. Again,  while  by  the  common  law  a  freehold  cannot  be 
created  to  commence  in  future  unless  by  the  way  of  reversion 
or  remainder,  nor  can  a  reversion  or  remainder  be  created  to 

1  2  Crabb,  Real  Prop.  165 ;  4  Kent,  Cora.  49 ;  Park,  Dow.  82,  157. 

2  Park,  Dow.  147 ;  Perkins,  §  317  ;  Tiid.  Cas.  44  ;  Paine's  case,  8  Rep.  36  a; 
4  Kent,  Com.  49  ;  Northcut  v.  Wliipp,  12  B.  Mon.  73  ;  1  Atkinson,  Conv.  258. 


262  LAW   OF   REAL   PROPERTY.  [BOOK    L 

take  effect  after  the  determination  of  a  prior  estate  in  fee- 
simple,  yet  by  way  of  springing  or  shifting  use  by  deed,  or 
by  way  of  executory  devise  by  will,  a  fee-simple  may  be  lim- 
ited to  take  effect  after  a  previous  estate  in  fee-simple  shall 
have  been  determined.  To  recur,  then,  to  the  right  of  dower 
in  estates  held  by  a  conditional  limitation,  it  is  laid  down  by 
a  writer  of  great  authority,  "  that  an  immediate  estate  in  fee, 
defeasible  on  the  taking  effect  of  an  executory  limitation,  has 
all  the  incidents  of  an  actual  estate  in  fee-simple  in  posses- 
sion, such  as  curtesy,  dower,  &c.,  the  devisee  having  the  in- 
heritance in  fee,  subject  only  to  a  possibility."  ^  And  this 
case  might  be  put  for  illustration.  A  devises  lands  to  B  in 
fee,  but  if  he  die  Mdthout  children  living,  then  over  to  another. 
Though  B  die  without  children,  his  wife  will  nevertheless 
have  dower.2  The  difficulty  has  been  to  distinguish  upon 
what  gi'ound  a  widow  may  have  her  dower  out  of  an  estate 
which  has  been  defeated  by  an  executory  limitation  like  the 
above,  but  would  be  barred  if  the  estate  of  her  husband  were 
defeated  by  a  condition,  at  common  law,  or  by  being  a  base  or 
determinable  fee. 

Butler  has  a  very  elaborate  note  to  Co.  Lit.  241,  in  which 
he  attempts  to  assist,  as  he  calls  it,  "  in  clearing  up  the  com- 
plex and  abstruse  points  of  learning  in  which  this  question  is 
involved."  Judge  Kent  says,  "  that  the  ablest  writers  upon 
property  law  are  against  the  right  of  the  dowress  when 
[*214]  the  fee  *  of  the  husband  is  determined  by  executory 
devise  or  shifting  use."  ^  Atkinson  states  the  law  to 
be  thus:  "Where  the  husband's  estate  is  defeated  by  title 
paramount,  as  by  entry  for  condition  broken,  by  reason  of  a 
defective  title  in  the  grantor,  or  by  shifting  use,  the  right  to 
the  dower  is  also  defeated  ;  but  where  the  husband's  estate 
is  defeated  by  executory  devise,  it  has  been  settled,  rather 
anomalously,  it  has  been  thought,  that  the  widow  shall  never- 
theless be  entitled  to  dower."*     Preston  leaves  the  point  as 

1  1  Jarman,  Wills,  792;  2  Crabb,  Real  Prop.  167. 

2  2  Crabb,  Real  Prop.  167  ;  Co.  Lit.  241,  n.  4 ;  Kennedy  v.  Kennedy,  5  Dutch. 
185.     See  also  ante,  pp.  *134,  *135,  and  cases  cited. 

3  4  Kent,  Com,  50.     See  also  Park,  Dow.  178-186 ;  Northcut  v.  Whipp,  12  B. 
Mon.  6-5. 

*  1  Atkinson,  Conv.  258. 


CH.  VII.  §  4.]  DOWER.  263 

doubtful.^  Burton  says,  "  Where  the  wife  or  husband  has  an 
estate  in  fee  subject  to  be  divested  by  a  shifting  use  or  exec- 
utory devise,  it  has  been  a  disputed  question  whether  these 
rights  may  not  be  enforced  after  the  event,  and  notwithstand- 
ing the  divesting  and  destruction  of  the  estate  upon  which 
they  attached."  ^  One  of  the  leading  cases  upon  this  subject 
is  Bucli:worth  v.  Thirkell,^  wliich  is  said  by  Judge  Kent  to  be 
opposed  to  the  opinion  of  the  ablest  writers  on  property  law  ;  * 
while  C.  J.  Best  says  that,  though  questioned,  it  has  become 
the  settled  law,  and  cites  in  that  connection  Lit.  §  53.^  The 
case  of  Moody  v.  King  was  this.  Devise  to  W.  F.  and  his 
heirs,  and  if  he  should  have  no  issue,  then  over  ;  W.  F.  had 
a  wife,  but  died  without  having  had  issue,  and  his  wife  was 
held  entitled  to  dower. 

Where  the  distinction  between  two  classes  of  cases  is  ap- 
parently so  subtle,  it  may  be  of  little  use  to  attempt  to  recon- 
cile or  explain  them,  though  it  is  not  difiQcult  to  conceive 
that  there  is  a  marked  difference  between  a  case  where  by 
the  terms  of  the  limitation,  if  the  estate  created  by  it  is  deter- 
mined, it  comes  back  with  its  seisin  to  him  who  had  the  orig- 
inal seisin  by  himself  or  his  heirs,  and  one  where  the  seisin  is 
never  reserved  by  the  original  owner,  but  passes  upon 
the  expiration  of  the  first  *  estate,  to  another.  Nor  is  [*215] 
it  difficult  to  comprehend  that  so  much  of  the  seisin 
in  the  case  of  an  estate  of  inheritance,  as  goes  to  the  widow 
at  the  death  of  her  husband,  should  remain  in  her  as  a  con- 
tinuation of  his  seisin  and  estate  till  exhausted  by  her  death. 
The  matter  was  considered  quite  at  length  by  Gibson,  C.  J., 
in  a  case^  where  the  devise  was  to  two  sons,  G.  and  O.,  their 
heirs  and  assigns,  but  if  either  should  die  without  having  law- 
ful issue  living  at  his  death,  his  estate  should  vest  in  the  sur- 
viving brother  and  his  heirs.  The  widow  of  one  of  these  sons 
who  had  died  without  issue,  living  the  other  son,  claimed 

1  3  Prest.-Abs.  373.  2  Burton,  Real  Prop.  §  355. 

3  Buckwortli  V.  Thirkell,  3  B.  &  P.  652,  n. 

*  4  Kent,  Com.  50.  See  also  Park,  Dow.  178;  Evans  v.  Evans,  9  Penn.  St. 
190. 

6  Moody  V.  King,  2  Bing.  447.  See  Hatfield  v.  Sneden,  42  Barb.  622 ;  Waller 
V.  Weller,  28  Barb.  589.     Botli  overruled,  54  N.  Y.  285. 

6  Evans  v.  Evans,  9  Penn.  Si.  190. 


264  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

dower,  and  the  same  was  allowed.  This  was,  it  is  true,  a 
case  of  executory  devise,  but  the  reasoning  of  the  Chief  Jus- 
tice covers  the  case  of  springing  and  shifting  uses  also.  "  Not 
one  of  the  text-writers,"  says  he,  "  has  hinted  at  the  true 
solution  of  the  difficulty,  except  Mr.  Preston.  All  agree  that 
where  the  husband's  fee  is  determined  by  recovery,  condition, 
or  collateral  limitation,*  the  wife's  dower  determines  with  it." 
"  I  have  a  deferential  respect  for  the  opinion  of  Mr.  Butler, 
who  was  perhaps  the  best  conveyancer  of  his  day,  but  I  can- 
not apprehend  the  reasons  of  his  distinction  in  the  note  to 
Co.  Lit.  241  a,  between  a  fee  limited  to  continue  to  a  particu- 
lar period  at  its  creation,  which  curtesy  or  dower  may  sur- 
\rive,  and  the  devise  of  a  fee-simple  or  a  fee-tail  absolute  or 
conditional,  which  by  subsequent  words  is  made  determinable 
upon  some  particular  event,  at  the  happening  of  which  dower 
or  curtesy  will  cease."  "  How  to  reconcile  to  any  system  of 
reason,  technical  or  natural,  the  existence  of  a  derivative 
estate,  after  the  extinction  of  that  from  which  it  was  derived, 
was  for  him  (Butler)  to  show,  and  he  has  not  done  it.  The 
case  of  a  tenant  in  tail,  says  Mr.  Preston,^  is  an  exception 
arising  from  an  equitable  construction  of  the  statute  De  Donis, 

and  the  cases  of  dower  of  estates  determinable  by  ex- 
[*216]   ecutory  devise  and  springing  use  *owe  their  existence 

to  the  circumstance  that  these  limitations  are  not  gov- 
erned by  common-law  principles.  The  mounting  of  a  fee  upon 
a  fee  by  executory  devise  is  a  proof  of  that."  "  Before  the 
Statute  of  Wills,  there  was  no  executory  devise,  and  before 
the  Statute  of  Uses,  there  were  no  springing  uses."  "  It  was 
the  benign  temper  of  the  judges  who  moulded  the  limitations 
of  the  estates  introduced  by  them,  whether  original  or  deriv- 
ative, so  as  to  relax  the  severer  principles  of  the  common  law, 
and  among  other  things  to  preserve  curtesy  and  dower  from 
being  barred  by  a  determination  of  the  original  estate  which 
could  not  be  prevented."  ^     In  Northcut  v.  Whipp,^  already 

*  Note.  —  An  instance  of  a  collateral  limitation  would  be  a  grant  to  one  and 
his  heirs  till  the  building  ot  St.  Paul's  shall  be  finished.    Park,  Dow.  163. 


1  3  Prest.  Abst.  373.  -  See  also  Sammes  &  Payne's  case,  1  Leon.  167. 

3  Northcut  V.  Whipp,  12  B.  Mon.  65. 


CH.  VIT.  §  4.]  DOWER.  265 

cited,  the  testator  devised  to  his  "  son  W.  L.  and  his  heirs." 
By  a  codicil  he  directed  that  if  W.  L.  died  without  heirs,  the 
estate  sliould  pass  to  his  sisters.  W.  L.  married  and  died 
without  heirs,  and  his  wife  claimed  dower.  The  court  allowed 
dower  on  the  broad  ground  that  in  all  cases  where  the  hus- 
band is  seised  of  such  an  estate  that  the  issue  of  the  wife,  if 
she  had  any,  would  inherit  it,  she  is  dowable,  although  her 
husband  die  without  issue,  and  though  it  is  limited  over,  in 
case  of  his  so  dying,  to  another.  Another  case  is  Milledge  v. 
Lamar.i  The  devise  was  to  Thomas,  his  heirs,  &c.,but  should 
the  said  Thomas  die  without  any  heir  of  his  body  begotten, 
then  over ;  it  was  held  that,  upon  Thomas'  dying  without 
issue,  his  wife  was  entitled  to  dower.  And  the  court  spoke 
with  approbation  of  Buck  worth  v.  Thirkell,  and  Moody  v. 
King,  above  cited,  and  cite  Lit.  §  52. 

Though  the  above  cases  may  not,  perhaps,  place  the  dis- 
tinction between  the  different  kinds  of  determinable  estates, 
so  far  as  dower  is  concerned,  on  very  clear  grounds,  the  ten- 
denc}"  of  the  modern  English  and  American  cases  seems  to  be, 
to  sustain  the  distinction  in  favor  of  dower  out  of  estates 
which  have  been  determined  by  an  executory  limitation,  and 
perhaps  the  reasoning  of  Ch.  J.  Gibson  furnishes  a  satisfac- 
tory basis  on  which  the  distinction  should  rest.  The  court  of 
New  York,  in  revising  an  opinion  given  by  the  Supreme  Court 
of  that  State,  sustain  the  doctrine  above  laid  down,  and  liken 
the  determination  of  a  husband's  estate,  in  such  cases,  to  that 
which  happens  by  the  death  of  a  tenant  in  tail,  in  which  case 
a  widow  always  takes  dower.^ 

*33.  The  most  common  mode  formerly  in  use  of  [*217] 
barring  dower  was  by  means  of  a  jointure.  But  as 
this  forms  a  species  of  estate  of  a  peculiar  character,  it  will 
be  considered  by  itself.  And  in  connection  with  it  reference 
will  be  made  to  ante  and  post  nuptial  settlements,  testamen- 
tary provisions,  &c.,  as  affecting  rights  of  dower. 

34.  In  some  States  there  is  a  bar  to  the  widow's  recovering 
dower  arising  from  lapse  of  time.  But  the  law  on  this  point 
is  very  far  from  being  uniform,  or,  in  some  cases,  even  settled. 

1  Milledge  v.  Lamar,  4  Desauss.  637. 

2  Hatfield  v.  Sneden,  54  N.  Y.  285.     See  also  ante,  p.  *135. 


266  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

That  a  long  lapse  of  time  after  the  husband's  death  before  any 
claim  made,  may  be  evidence  proper  to  be  submitted  to  a  jury 
to  establish  a  release  of  the  right,  would  seem  to  be  sustained 
by  authority  as  well  as  the  general  principles  of  evidence,  even 
though  no  positive  rule  of  limitation  existed.^  So  the  receiv- 
ing a  separate  maintenance  for  several  years  before  the  hus- 
band's death,  under  articles  of  separation,  and  continuing  to 
receive  it  for  eight  years  after,  was  held  to  create  a  presump- 
tion of  release  of  dower  on  the  part  of  the  wife.^ 

35.  In  England,  by  the  statute  3  &  4  Wm.  IV.  c.  27  the  lim- 
itation of  a  widow's  right  to  claim  dower  is  fixed  at  twenty 
years  from  the  death  of  the  husband.  But  before  that  there 
was  no  statute  bar  to  its  recovery  there. ^  A  similar  limitation 
exists  in  New  York,  New  Jersey,  Massachusetts,  and  South 
Carolina  ;  *  also  in  Tennessee,^  and  in  Kentucky.^  In  New 
Hampshire,  the  bar  is  twenty  years,  reckoned  from  the  date  of 
the  demand  of  dower.'^  In  Ohio,  the  limitation  is  twenty-one 
years,^  while  in  Georgia  it  is  but  seven  from  the  death  of  the 
husband.^     It  seems  that  in  Maine  the  statute  limitation  of 

twenty  years  applies  to  dower  ;  but  it  begins  to  run 
[*218]  only  from  the  death  of  *  the   husband,  so   that   she 

would  not  be  affected  by  any  adverse  possession  prior 
to  that  time.^*^  By  statute,  all  suits  for  dower  are  barred  after 
three  years  in  Alabama.^^  On  the  other  hand,  the  old  English 
law  as  to  dower  being  barred  by  the  lapse  of  time  prevails  in 
Connecticut,  in  North  Carolina,  and  in  Maryland.^^  j^  the 
cited  case,  the  husband  died  in  1814,  and  the  suit  for  dower 

I  Barnard  v.  Edwards,  4  N  H.  32L  2  Evans  v.  Evans,  3  Yeates,  507. 
3  4  Kent,  Com.  70 ;  Park,  Dow.  311 ;  1st  Rep.  Eng.  Com.  Real  Prop.  40. 

*  4  Kent,  Cora.  70;  Mass.  Gen.  Stat.  c.  90,  §  6;  Wilson  v.  McLenaghan,  1  Mc- 
MuUan,  Eq.  35. 

5  Carmichael  v.  Carmichael,  5  Humph.  96. 

e  Ralls  V.  Hughes,  1  Dana,  407.  t  Robie  v.  Flanders,  33  N.  H.  524. 

8  Tuttle  V.  Wilson,  10  Ohio,  24. 

9  Chapman  i;.  Schroeder,  10  Ga.  321.  The  same  rule  is  in  operation  in  Illi- 
nois, Owen  V.  Peacock,  38  III.  33. 

i«  Durham  v.  Angier,  20  Me.  242. 

II  Alabama,  Code,  1852,  §  1375 ;  Ridgway  v.  McAlpine,  31  Ala.  464  ;  Martin 
V.  Martin,  35  Ala.  560. 

12  1  Swift's  Dig.  256  ;  Spencer  v.  Weston,  1  Dev.  &  Bat.  213 ;  Chew  v.  Farmer's 
Bank,  2  Md.  Ch.  Dec.  231. 


CH.  VTI.  §  4.]  DOWER.  267 

was  brouGflit  in  1841.  And  so  far  as  the  Statute  of  Limitations 
grows  out  of  the  supposed  right  to  presume  a  title  from  long 
adverse  enjoyment  by  the  person  in  possession,  it  could  not 
well  apply  to  the  case  of  dower,  since  upon  the  death  of  the 
husband  the  wife  is  not  seised,  nor  has  she  a  right  of  entry. 
So  that  whoever  is  in  possession  is  not  to  be  regarded  as  holding 
adversely  to  her,  and  her  non-claim  is  a  mere  forbearance  to 
place  herself  in  a  condition  in  which  she  can  convert  a  mere 
personal  chose  in  action  into  an  estate. 

36.  Much  of  the  law,  however,  as  once  understood,  as  to  bar- 
ring a  widow's  right  of  dower  in  her  husband's  estate,  has  been 
practically  superseded  by  statutes  both  in  England  and  several 
of  the  United  States.*  In  pursuance  of  a  recommendation 
on  the  part  of  the  commissioners,  the  act  of  3  «fe  4  Wm.  IV. 
c.  105,  called  the  Dower  Act,  was  passed,  covering  all  cases  of  • 
marriage  since  January  1,  1834.  By  that  act  the  dower  of 
married  women  has  been  placed  completely  within 
the  power  of  their  *  husbands.  A  husband  may  ex-  [*219] 
elude  his  wife  from  such  claim  by  inserting  a  clause 
of  such  exclusion  in  the  deed  which  he  takes,  or  by  a  deed  exe- 
cuted by  himself  in  his  lifetime,  or  by  his  will,  after  his  death. 
And  even  if  no  such  disposition  is  made  of  the  husband's  lands, 
they  are  charged  with  the  payment  of  his  debts,  to  the  exclu- 
sion, if  need  be,  of  the  widow's  dower.^  The  effect  has  been 
that  dower  no  longer  exists  in  practice,  except  as  against  the 
husband's  heirs  at  law,  and  even  to  that  extent  it  is  inoper- 
ative if  the  husband,  as  is  now  commonly  done,  inserts  a 
declaration  in  his  title-deed  denying  such  right.^     The  only 

*  Note.  —  The  reasons  for  this  change  in  England  are  examined  and  explained 
at  length  by  the  Commissioners  upon  tiie  Law  of  Real  Property,  in  their  First 
Eeport,  p.  16.  They  regard  the  law  of  dower  as  well  adapted  to  the  state  of 
freehold  property  existing  at  the  time  when  it  was  established,  but  that  the 
changes  in  the  condition  of  the  kingdom  render  it  at  this  day  highly  inconven- 
ient. And  that  this  has  led  to  so  many  modes  of  evading  the  law  upon  the  sub- 
ject, "  that  the  general  result  is,  that  the  right  to  dower  exists  beneficially  in  so  few 
instances,  that  it  is  of  little  value  considered  as  a  provision  for  widows."  The  same 
idea  has  been  expressed  by  Blackstone,  who  speaks  of  it  as  having  become  "  a 
great  clog  to  alienations,"  and  "  otherwise  inconvenient  to  families."  2  BL 
Com.  136. 

1  Wms.  Real  Prop.  193,  194.  2  ibid.  194. 


268  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

compensation  provided  in  the  act  for  this  overthrow  of  the  old 
system  is,  that  dower  may  extend  to  lands  to  which  the  hus- 
band has  a  right  though  unaccompanied  with  a  seisin,  and  to 
equitable  estates  of  inheritance.^  From  various  causes  grow- 
ing out  of  the  condition  of  a  new  country,  in  which  wild  lands 
rapidly  become  cultivated  fields,  and  forests  give  place  to  marts 
of  trade  and  commerce,  the  people  of  many  of  the  States  have 
seen  fit  to  modify  by  statute  the  common  law  as  to  dower.  In 
some,  the  widow  can  only  claim  her  dower  out  of  lands  of 
which  her  husband  died  seised.  In  some  she  is  authorized  to 
clear  wild  land  and  reduce  it  to  culture,  though  to  do  so  she 
must  cut  down  the  timber  and  firewood  thereon.  And  in 
others  there  are  other  changes  which  can,  at  best,  be  but  very 
briefly  noticed.  In  several  of  the  States  the  common  law  will 
be  found  substantially  in  operation,  except,  it  may  be,  as  to 
equitable  estates,  which  have  already  been  spoken  of.  Some 
of  these  changes  are  enumerated  below.* 

*NoTE.  —  In  the  following  States  the  widow  takes  for  life,  one  third  of  all 
lands  of  which  the  husband  was  seised  during  coverture.  Alabama,  Code,  1867, 
§  1624;  Arkansas,  Dig.  1858,  c.  60,  §  1 ;  Delaware,  Code,  1852,  c.  87,  §  1 ;  Illi- 
nois, Rev.  Stat.  1874,  p.  423 ;  Kentucky,  Gen.  Stat.  1873,  p.  626 ;  Maine,  Rev, 
Stat.  1871,  p.  756;  Maryland,  Laws,  1860,  p.  825;  Massachusetts,  Gen.  Stat. 
c.  90,  §  1 ;  Michigan,  Comp.  St.  1857,  p.  850.  And  the  ordinance  of  1787  ex- 
tended this  right  over  all  the  North-western  territory.  May  v.  Rumney,  1  Mich. 
1 ;  Missouri,  Wagner's  Stat.  1870,  p.  512 ;  New  Jersey,  Nixon,  Dig.  227 ;  New 
York,  1  Stat,  at  Large,  691 ;  Ohio,  Rev.  Stat.  1860,  c.  38,  §  1 ;  Rhode  Island, 
Gen.  Stat.  1872,  514 ;  North  Carolina,  Gen.  Stat.  1873,  p.  839.  —  South  Carolina, 
recognizes  the  right  of  dower,  and  authorizes  femes  covert  to  convey  the  right. 
Rev.  Stat.  c.  83,  §§  1,  3.  Virginia,  Code,  1860,  p.  532 ;  Wisconsin,  Rev.  Stat. 
1858,  c.  89,  §  1.  —  Iowa.  Dower  abolished ;  widow  takes  one  third  of  lands  in 
fee  of  which  husband  was  possessed  during  coverture.  Code,  1873,  p.  421. — 
Kansas.  Dower  abolished ;  widow  takes  in  fee  one  half  of  all  real  estate  of 
which  husband  had  the  legal  estate  during  coverture,  if  not  needed  to  pay 
debts,  if  she  ever  has  resided  in  the  State.  Gen.  Stat.  1868,  p.  393.  —  Nebraska. 
A  widow  has  as  dower  one  third  of  whatever  husband  was  seised  of  as  inher- 
itance during  coverture.  Gen.  Stat.  1873,  p  276.  In  most  of  these  States  dower 
extends  to  equitable  as  well  as  legal  estates,  and  the  following  are  some  of  the 
decided  cases  upon  the  right  of  dower  in  these  States.  Derush  v.  Brown,  8 
Ham.  413;  Tuttle  v.  Willson,  10  Ohio,  24;  Griffin  v.  Reece,  1  Harring.  508; 
Avant  V.  Robertson,  2  McMullan,  215;  Markham  v.  Merrett,  7  How.  (Miss.) 
437  ;  Hill  v.  Mitchell,  5  Ark.  608. 

In  the  following  States,  with  the  qualification  hereafter  expressed,  the  widow 

»  Wms.  Real  Prop.  194. 


CH.  VII.  §  4.]  DOWER.  269 

*3T.  One  mode  in  which  dower  may  be  defeated  [*220] 
remains  to  be  mentioned,  and  that  is,  by  the  exercise 
of  eminent   domain  during  the  life  of  the  husband, 
or,  what  is  equivalent  to  it,  the  *  dedication  of  land  to  [*221] 

takes  dower  out  of  the  lands  of  which  her  husband  died  seised.  Connecticiit, 
Gen.  Stat.  1875,  p.  376;  Florida,  Amend.  Code,  1871,  p.  292.  In  Georgia, 
Code,  1873,  p.  304;  Hart  v.  McColIum,  28  Ga.  480;  Mississippi,  Code,  1871,  p. 
253 ;  New  Hampshire,  Gen.  Stat.  1867,  c.  183,  §  2 ;  Tennessee,  Caruthers  & 
Nicholson,  Dig.  1836,  c.  22,  §  8,  p.  262 ;  Vermont,  Rev.  Stat.  1863,  c.  65,  §  1 ; 
Stedman  v.  Fortune,  5  Conn.  462. 

The  qualifications  to  this  in  some  of  the  States  are  as  follows  :  In  Mississippi, 
if  the  husband  devises  away  his  land,  and  in  the  devise  make  any  provision  for 
his  wife,  it  defeats  her  dower.  Her  dower  extends  to  equitable  estates  and  to 
estates  convej'ed  by  husband  otherwise  than  in  good  faith.  A  conveyance  by  a 
husband  in  good  faith,  and  for  a  A^aluable  consideration,  in  his  lifetime  will  bar 
the  wife's  dower.  Otherwise,  or  if  made  to  wrong  her,  it  would  not  affect  her 
claim.  Jiggitts  v.  Jiggitts,  40  Miss.  722. — New  Hampshire,  wife's  dower  can 
only  be  in  cultivated  lands,  imless  of  woodland  kept  by  the  husband  as  a  wood- 
lot  and  occupied  with  some  farm.  —  Noi-th  Carolina  and  Tennessee,  wife  may.  have 
dower  out  of  lands  fraudulently  conveyed  by  husband  to  cut  ofE  her  right.  — 
Pennsylvania,  if  husband  leave  issue,  she  takes  one  third  for  life  after  payment 
of  debts,  in  lieu  of  dower  at  common  law  ;  if  he  die  intestate  without  issue,  she 
takes  half  the  real  estate,  including  mansion-house,  &c.  Bright,  Pur.  Dig.  529.  — 
In  Florida,  the  widow  may,  instead  of  dower,  take  a  child's  part  in  fee. — In 
Alabama,  wife  may  have  dower  in  land  purchased  and  paid  for  by  husband,  though 
no  deed  be  given.  —  In  California,  all  tlie  property  acquired  by  husband  and  wife 
during  coverture,  except  by  gift,  bequest,  devise,  or  descent,  is  the  common 
property  of  both,  and  of  this  on  his  death  she  takes  one  half  as  her  own,  but  has 
no  other  dower  in  lands.  Act  1850,  c.  147,  §  10.  —  Illinois,  dower  is  had  in  lands 
contracted  for  by  the  husband,  though  the  title  may  not  be  complete  till  after 
his  death.  —  Indiana,  one  third  of  the  husband's  real  estate  descends  to  his  wife 
as  his  heir  in  fee,  whether  he  dies  testate  or  intestate ;  and  this  extends  to  all 
lands  of  which  husband  may  have  been  seised  during  coverture,  which  she  has 
not  released.  And  if  his  real  estate  exceeds  -^lO.OOO  in  value,  she  takes  oijo 
fourth;  if  $20,000,  only  one  fifth.  Rev.  Stat.  1852,  c.  27,  §§  16,  17,  27 ;  Noel  v. 
Ewing,  9  Ind.  37;  Martindale  v.  Martindale,  10  Ind.  566. —In  Kentucky/,  Vir- 
ginia, and  Missouri,  she  has  dower  whether  husband  has  or  has  not  had  posses- 
sion of  the  lands  in  his  life.  —  In  Missouri,  dower  is  allowed  in  leasehold  estates 
for  the  term  of  twenty  years  or  more.  Wagner's  Stat.  538.  —  In  Massachusetts, 
it  is  allowed  out  of  leasehold  estates  for  one  hundred  years  or  more,  of  which 
fifty  remain.  —  In  Ohio,  it  is  allowed  out  of  the  right  or  interest  of  the  husband 
in  lands  held  by  bond,  article,  lease,  or  other  evidence  of  claim.  —  In  Nevada, 
dower  as  well  as  curtesy  are  abolished.  All  of  the  common  property  goes  to  the 
husband  if  he  survive,  and  one  half  to  the  wife  if  she  survive.  Laws,  1865.  —  In 
Dacotah,  dower  and  curtesy  are  abolished.  Civ.  Code,  1806.  —  In  Nebraska, 
dower  is  allowed.  In  lands  aliened  by  the  husband,  the  widow  may  have  dower 
of  the  value  of  one  third  of  the  rents  and  profits,  or  one  third  of  its  value  v^hen 
BO  aliened.     Gen.  Stat.  1873,  p.  277. 


270  LAW  OF  REAL  PROPERTY.  [bOOK  L 

the  public  use.  This  grows  out  of  the  nature  of  a  wife's 
interest  in  the  lands,  and  whether  it  is  such  as  ought  to 
be  regarded  in  giving  compensation.  In  a  case  in  New  York, 
where  a  corporation  was  authorized  to  take  lands  for  a  public 
use,  and  hold  the  same  in  fee,  paying  the  owners  thereof  an 
ascertained  compensation,  it  was  held  that  the  wife's  right  of 
dower  was  effectually  barred  by  the  act  of  the  legislature. 
It  was  said  that  the  right  of  the  wife  during  her  husband's 
life  being  merely  inchoate  could  not  be  regarded  in  exercising 
eminent  domain,  and  was,  moreover,  subject  to  any  regulation 
which  the  legislature  might  see  fit  to  make,  though  its  effect 
might  be  to  divest  the  right ;  and  the  estate  of  the  widow  after 
the  assignment  of  dower  being  a  continuation  of  the  estate  of 
the  husband,  he,  while  living,  was  the  only  one  who  could 
represent  it,  and  his  compensation  was  in  full  for  the  part 
taken.^  So  where  the  owners  of  land  laid  open  a  street  in  a 
city  for  the  purpose,  among  other  things,  of  erecting  a  mar- 
ket-house thereon  by  the  city,  which  was  done  accordingly, 
it  was  held  that  land  so  taken,  like  land  taken  for  highways, 
was  not  subject  to  the  widow's  dower  in  right  of  the  original 
owners.^  The  principle  involved  in  the  above  and  similar 
cases  is  a  pretty  important  one,  nor  has  it  been  hitherto  very- 
well  defined.  It  is  difBcult  to  see  why  it  should  not  apply  in 
all  cases  where  the  law  authorizes  the  husband's  land  to  be 
taken  in  invitum,  and  compensation  therefor  made  for  the  fee 
of  the  same ;  as,  for  instance,  in  those  States  where  the  mill- 
owner  is  authorized  to  flow  lands  which  he  does  not  own.  At 
common  law,  a  widow  could  not  have  dower  of  a  castle,^  since, 

among  other  reasons,  she  could  not  put  it  to  profitable 
[*222]  use ;  and  the  same  reasoning  would  apply  as  to  *  lands, 

though  granted  by  the  husband,  which  have  been  ap- 
propriated to  public  uses,  such  as  cemeteries,  public  parks, 
and  the  like. 

1  Moore  v.  New  York,  4  Sandf.  456 ;  8.  c.  4  Seld.  110. 

2  Gvvynne  v.  City  of  Cincinnati,  3  Ohio,  24. 
8  1  Cruise,  Dig.  129. 


CH.  VII.  §  5.J 

DOWER. 

SECTION  V. 

HOW   AND    BY  WHOM  ASSIGNED 

1. 

Eight  accrues  at  death  of  husband. 

2. 

Widow's  quarantine. 

3. 

Parol  assignment  good. 

4. 

Dower  of  common  right. 

5. 

Wiien  by  metes  and  bounds. 

6. 

When  in  common,  &c. 

7. 

When  an  assignment  is  a  satisfaction. 

8. 

Assignment  must  be  absolute. 

9. 

Must  be  a  freehold. 

10. 

By  whom  made. 

11, 

Dower,  how  recovered. 

12. 

How  recovered  at  law. 

13. 

Of  making  demand. 

14. 

Action  of  dower. 

15. 

Form  of  judgment. 

16. 

Of  damages. 

17. 

Effect  of  judgment. 

18. 

Writ  of  seisin. 

19. 

Service  of  writ  of  seisin. 

20. 

Form  of  assigning  dower. 

21. 

When  objection  made  to  assignment. 

22. 

Mode  of  estimating  value  of  estate. 

23. 

Improvements,  how  availed  of. 

24. 

Assignment  de  novo. 

25. 

Remedy  for  dower  in  equity. 

26. 

Estimating  life  estate. 

27. 

Rule  of  contributing  to  redeem. 

271 


The  next  subject  in  order  is,  how  and  by  whom  dower  may 
be  assigned,  and  in  what  manner  its  assignment  may  be  en- 
forced. 

1.  In  the  first  place,  the  widow  is  entitled  to  have  dower 
set  out  to  her  immediately  upon  the  death  of  her  husband. 
But  until  it  is  assigned  she  has  no  right  to  claim  any  specific 
part  of  the  estate,  or  enter  upon  or  occupy  any  part  of  it.^ 

2.  Out  of  tenderness,  however,  for  her  condition,  the  Mag- 
na Charta  provided  for  her  the  right  to  occupy  the  principal 
mansion-house  of  her  husband,  and  to  be  supported  therein 
out  of  his  personal  estate  for  the  term  of  forty  days  from  the 

1  2  Bl.  Com.  139. 


272  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

time  of  his  death,  which  was  called  her  quarantine.  She  for- 
feited this,  however,  if  she  married  again  within  that  time.^ 
This  right,  moreover,  could  only  be  exercised  in  respect  to 
such  estate  as  she  is  dowable  of.  If  her  liusband,  therefore, 
died  possessed  of  a  leasehold  estate,  she  could  not  claim  her 
quarantine  out  of  it.^  The  right  of  quarantine  in  the  widow 
is  recognized  in  the  statutes  of  the  States,  though  somewhat 
various  as  to  the  extent  and  duration  of  its  enjoyment  by  the 

widow.* 
[*223]       3.  The  right  *  of  a  wife  to  dower  having  become 

fixed  by  the  death  of  the  husband,  nothing  remains 
in  order  to  consummate  it  but  to  ascertain  the  particular  part 

*  Note.  —  In  Alabama,  she  has  the  use  of  the  dwelling-house  in  which  the 
husband  usually  resided,  rent  free,  till  her  dower  is  assigned  to  her;  Code,  1867, 
§  1630.  Even  against  the  alienee  of  her  husband  ;  Shelton  v.  Carrol,  16  Ala. 
148  ;  Pharis  v.  Leachman,  20  Ala.  662.  In  Arkansas,  she  has  the  mansion-house 
two  months,  and  until  dower  is  assigned  ;  Dig.  Stat.  1858,  c.  60,  §  17.  Florida, 
she  holds  till  dower  is  assigned ;  Dig.  Amend.  Code,  294.  And  in  Kentucky,  Gen. 
Stat.  1873,  p.  530  ;  Chaplin  v.  Simmons,  7  Mon.  337.  The  same  in  Mississippi ; 
Rev.  Code,  1871,  p.  255.  And  Missouri,  Wagner's  Stat.  1870,  p.  642.  New 
Jersey,  Nixon,  Dig.  p.  227.  Rhode  Island,  if  she  brings  her  writ  of  dower  within 
twelve  months  of  the  grantor's  administration  ;  Gen.  St.  1872,  p.  515.  Texas, 
same  as  Alabama;  Hartley's  Dig.  1850,  p.  287.  Virginia,  the  same ;  and  also 
the  profits  of  one  third  of  the  real  estate  ;  Code,  1860,  p.  533.  In  Connecticut,  the 
widow  immediately  on  death  of  husband  becomes  tenant  in  common  with 
the  husband's  heirs,  of  her  dower;  88  Conn.  256;  Stedman  v.  Fortune,  5 
Conn.  462.  Indiana,  dower  is  abolished,  and  widow  takes  one  third  by  descent; 
Stat.  1860,  p.  294.  Maine,  the  period  is  ninety  days  ;  Rev.  Stat.  1871,  p.  758. 
Massachusetts,  it  is  a  right  to  occupy  the  premises  with  the  children  or  heirs  of 
deceased,  or  receive  one  tiiird  of  the  rents  till  dower  is  set  out ;  Gen.  Stat.  c. 
90,  §§  7  and  18.  Michigan,  she  may  remain  one  year  in  the  house  ;  Comp.  L. 
§  2794.  So  in  Minnesota;  Stats.  1866,  p.  362.  New  York,  it  is  forty  days ; 
1  Stat,  at  Large,  p.  699.  In  New  Hampshire  the  widow  is  entitled  to  occupy  the 
house  of  her  husband  forty  days  without  rent,  and  have  reasonable  sustenance 
out  of  the  estate ;  and  she  is  entitled  to  one  third  part  of  the  rents  and  profits  of 
the  estate  of  which  her  husband  died  seised,  until  dower  is  assigned  ;  Gen.  Stat. 
1866/  c.  183,  §§  14,  15.  Vermont,  she  may  occupy  with  the  heirs  until  dower 
is  set  out;  Gen.  Stat.  1862,  p.  413.  Wisconsin,  widow  may  occupy  the  house 
for  one  year;  Rev.  Stat.  185-!,  c.  89,  §  23.  In  Nebraska  the  widow  may 
occupy  the  dwelling-house,  and  have  reasonable  sustenance  from  the  estate  for 
one  year;  Gen.  Stat.  1873,  pp.  278,  279;  and  may  occupy  with  the  children 
and  other  heirs  without  assignment  of  dower,  so  long  as  they  do  not  object, 
lb.  pp.  278,  279. 


1  Tud.  Cas.  51 ;  Co.  Lit.  34  b.  -  Voelckner  v.  Hudson,  1  Sandf .  215. 


CH.  VII.  §  5.]  DOWER.  273 

of  his  estate  she  is  to  enjoy  by  virtue  of  it.  The  moment 
this  is  done,  a  freehold  vests  in  her  by  act  of  law,  and  not  by 
way  of  conveyance  from  the  heir  or  terre-tenant.  Nor  is  any 
writing  or  livery  of  seisin  required  to  complete  the  assign- 
ment. A  parol  assignment,  if  accepted  by  the  widow,  is  as 
effectual  as  if  done  in  ever  so  formal  a  manner.^ 

4.  There  are  two  modes  of  assigning  dower,  one  "  of  com- 
mon right,"  and  one  "  against  common  right."  The  former 
is  the  one  always  to  be  adopted  where  the  assignment  is  by 
legal  process,  and  must  be  pursued  by  the  tenant  or  heir  if 
he  undertakes  to  set  out  dower  so  as  to  satisfy  her  claim 
without  any  formal  assent  or  acceptance  on  her  part. 

The  *  other  may  be  resorted  to  and  take  almost  any  [*224] 
form,  because  it  implies  a  special  assent  or  agreement 
on  her  part  to  accept  it  instead  of  the  more  precise  and  for- 
mal manner. 

5.  Dower  of  common  right  must  always  be  assigned  by 
metes  and  bounds  where  the  property  is  of  a  character  that  it 
can  be  so  set  out.^  And  if  the  sheriff  in  assigning  dower 
should  adopt  any  other  form,  it  would  be  erroneous.^ 

6.  But  where  the  parties  agree  on  a  different  form,  it  may 
be  effectual.  Thus,  dower  may  be  set  out  in  common  with 
the  balance  of  the  estate.*  Or  it  may  be  a  rent  for  life  issuing 
out  of  the  lands  of  which  the  widow  is  dowable  ;  or  it  may  be 
of  a  certain  agreed  number  of  acres.^  But  the  dower  as- 
signed must  be  out  of  land  of  which  she  is  dowable,  unless 
it  is  done  by  the  consent  of  the  parties.^ 

7.  If  it  is  done  in  any  form  against  common  right,  it  will 
not  operate  to  bar  her  claim  unless  it  be  done  by  indenture  to 
which  she  is  a  party,  and  by  which  she  would  be  estopped 

>  Meserve  v.  Meserve,  19  N.  H.  240 ;  Blood  v.  Blood,  23  Pick.  80 ;  Sliattuck 
V.  Gragg,  23  Pick.  88  ;  Conant  v.  Little,  1  Pick.  189  ;  Johnson  v.  Neil,  1  Ala.  166 ; 
Jones  V.  Brewer,  1  Pick.  314  ;  Baker  v.  Baker,  4  Greenl.  67 ;  Boyers  v.  Newbanks, 
2  Ind.  388 ;  Tud.  Cas.  51 ;  Johnson  v.  Morse,  2  N.  H.  48 ;  Pinkham  j;.  Gear,  3 
N.  H.  163. 

2  Pierce  v.  Williams,  2  Penning.  521. 

3  Booth  V.  I-ambert,  Style,  276;  Co.  Lit.  34  b,  n.  213;  1  Bolle,  Abr.  683. 
*  Booth  V.  Lambert,  Style,  276. 

5  Co.  Lit.  34  b ;  Moore  59 ;  1  Bright,  Hus.  &  Wife,  375,  377,  378  ;  Tud.  Cas.  52, 

6  Perkins,  §  407. 

VOL.  I.  18 


274  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

from  avoiding  it.^  Even  the  acceptance  of  a  deed  from  the 
heir  or  tenant  would  not  be  sufficient  if  she  do  not  execute  a 
release.^  One  reason  why  an  assignment  of  lands  out  of 
which  the  widow  is  not  dowable,  is  no  bar  to  dower  unless 
done  and  accepted  by  indenture,  is,  that  her  title  to  it  must 
depend  upon  the  grant  of  the  person  making  the  assignment, 
and  unless  this  be  by  deed,  she  can  only  hold  as  tenant  at 
will ;  and  for  the  further  reason,  that  a  right  or  title  to  a 
freehold  cannot  be  barred  by  any  collateral  satisfaction.^  And 
the  same  rule  applies  to  a  rent  granted  in  lieu  of  dower,  out 
of  lands  of  which  she  is  not  dowable.*     Where  her  dower  has 

been  thus  assigned  against  common  right,  she  will  be 
[*225]  bound  by  it,  whether  it  turns  out  to  *  be  more  or  less 

valuable  than  what  her  appropriate  dower  would  have 
been,  and  she  cannot  insist  upon  a  new  assignment,  though 
her  title  fails  to  that  which  she  has  accepted.^ 

8.  Another  essential  requisite  in  assigning  dower  "of  com- 
mon right,"  in  order  to  operate  as  a  bar  to  a  widow's  action 
for  recovery  of  dower,  is  that  it  should  be  done  absolutely, 
and  not  be  accompanied  by  any  condition.^  And  where  in 
the  assignment  the  trees  growing  upon  the  premises  were 
excepted,  it  was  held  that  such  exception  was  inconsistent 
and  void.'' 

9.  In  the  next  place,  such  assignment  must  be  absolute  for 
her  life.  Any  less  estate,  whatever  be  its  value,  would  not 
bar  her  suit  to  recover  her  legal  dower.^  And  one  reason  for 
this  is,  that  the  estate  of  the  widow  in  her  dower  lands  is 
considered  as  a  continuance  of  that  of  her  husband,  the  heir 
or  tenant  being  a  mere  minister  of  the  law  in  marking  out  as 
to  what  particular  land  this  shall  apply.  He  cannot  dictate 
or  change  the  terms  on  which  she  is  to  hold  it.^ 

1  Co.  Lit.  34  b ;  Perkins,  §  410 ;  1  Bright,  Hus.  &  "Wife,  377 ;  Tud.  Cas. 
52 ;  Conant  v.  Little,  1  Pick.  189  ;  Jones  v.  Brewer,  1  Pick.  314. 

2  1  Roper,  Hus.  &  Wife,  410. 

8  1  Roper,  Hus.  &  Wife,  410;  Vernon's  case,  4  Rep.  1. 

<  1  Bright,  Hus.  &  Wife,  377.         5  Jones  v.  Brewer,  1  Pick.  314 ;  Co.  Lit.  82  b. 

6  Co.  Lit.  34  b,  n.  217  ;  2  Crabb,  Real  Prop.  144 ;  Tud.  Cas.  52. 

1  Bullock  V.  Finch,  1  Rolle,  Abr.  682 ;  Tud.  Cas.  52. 

8  1  Bright,  Hus.  &  Wife,  379 ;  2  Crabb,  Real  Prop.  144. 

»  1  Bright,  Hus.  &  Wife,  379. 


CH.  VII.  §  5.]  DOWER.  275 

10.  Til  respect  to  the  person  by  whom  dower  may  be  set 
out,  where  resort  is  not  had  to  legal  process,  it  must  be  the 
tenant  of  the  freehold.  No  other  person  can  do  it.  But  it  is 
not  essential  that  the  title  of  the  tenant  should  be  a  valid  one, 
provided  he  is  in  possession  under  a  claim  of  title,  and  sets 
out  the  dower  without  fraud  or  covin.^  If,  therefore,  it  be  so 
done  by  a  disseisor,  abator,  or  intruder,  it  cannot  be  avoided 
by  the  heir  or  disseisee,  provided  it  be  of  such  part  only  of 
the  estate  as  the  heir  would  have  been  bound  to  assign  had  he 
been  in  possession  of  the  premises.  Though,  if  it  be  of  a  rent 
instead  of  the  land,  the  heir  or  disseisee  would  not  be  bound 
by  it,  because  it  is  against  common  right,  and  is  only  good 
when  made  by  some  one  competent  to  bind  the  estate  by 
agreement.^  It  may  be  done  by  an  infant,  if  heir  to  the 
estate  of  which  the  widow  is  dowable,  subject,  how- 
ever, to  be  corrected  and  diminished  *  by  writ  of  ad-  [*226] 
measurement  of  dower  in  favor  of  such  infant,  if,  by 
mistake,  he  shall  have  set  her  out  too  much.^  But  this  priv- 
ilege is  hmited  to  infants,  for  if  the  heir  be  of  age  and  sets 
out  dower,  which  is  accepted  by  the  widow,  both  parties  wijl 
be  governed  by  it.*  If  the  infant  heir  be  under  guardianship, 
the  guardian  may  assign  dower.  And  it  seems,  that  if  so  done, 
it  will  bind  the  heir,  although  Blackstone  and  Fitzherbert 
state  the  law  otherwise.^  The  courts  of  Illinois  hold  that 
such  setting  out  of  dower  by  the  guardian  of  a  minor  does 
not  bind  him  when  he  comes  of  age,  so  that  he  may  not  then 
have  it  revised.^  If  the  land  be  owned  by  two  as  joint  ten- 
ants, either  may  set  out  the  dower.'^  And  if  these  joint 
tenants  be  husband  and  wife,  she  will  be  bound  by  the 
assignment  of  the  husband.^ 

1  Co.  Lit.  35  a. 

2  Perkins,  §  394;  Tud.  Cas.  51;  Co.  Lit.  35  a;  1  Bright,  Hus.  &  Wife,  365; 
Perkins,  §  398  ;  ante,  pi.  6. 

8  2  Bl.  Com.  136  ;  Fitzh.  N.  B.  348  ;  Jones  v.  Brewer,  1  Pick.  314 ;  McCormick 
V.  Taylor,  2  Ind.  336. 

*  Stoughton  V.  Leigh,  1  Taunt.  402 ;  Tud.  Cas.  52. 

5  Boyers  v.  Newbanks,  2  Ind.  388 ;  Jones  v.  Brewer,  1  Pick.  314 ;  Young  v. 
Tarbell,  37  Me.  509;  2  Bl.  Com.  136;  Fitzh.  N.  B.  348;  Curtis  v.  Hobart,  41 
Me.  230. 

6  Bonner  i;.  Peterson,  44  111.  260. 

7  Co.  Lit.  35  a.  ^2  Crabb,  Real  Prop.  142. 


276  LAW   OF   REAL   PROPERTY.  [BOOK    I. 

11.  If  now  it  is  inquired  what  measures  a  widow  is  to  resort 
to  if  the  heir  or  tenant  shall  fail  to  assign  her  her  legal  dower, 
it  will  be  answered  that  she  may  resort  to  certain  forms  of  legal 
process  by  which  the  same  will  be  effected.  In  Illinois,  a 
widow  recovers  her  dower  in  an  action  of  ejectment.^  One 
of  these  modes  is  by  the  common-law  action  of  dower,  an- 
other is  by  proceedings  in  equity,  and  a  third  is  one  provided 
in  most,  if  not  all  the  States,  by  a  cheap  and  summary  process 
issuing  from  courts  having  cognizance  of  probate  matters. 
In  some  cases  these  may  be  concurrent  remedies.  But,  gen- 
erally speaking,  the  last  is  more  restricted  than  either  of  the 
others,  and  confined  to  cases  where  the  claim  of  the  widow  is 
upon  the  heir  or  devisee  of  the  husband,  and  is  not  the  proper 
one  to  resort  to  when  it  is  necessary  to  determine  a  contested 
right  of  dower.2  In  New  York,  the  effect  of  a  decree  of  the 
surrogate  is  merely  to  fix  the  admeasurement  and  location  of 
the  wife's  dower,  but  it  does  not  establish  the  title.  That 
must  be  tried  in  an  action  of  ejectment,  sued  out  to  recover 
possession  of  the  premises.^  If,  however,  dower  shall  have 
been  set  out  by  one  of  these  courts,  the  assignment  is  conclu- 
sive upon  the  parties  until  the  judgment  shall  be  reversed.'* 

And  in  Massachusetts,  though  the  judge  of  probate 
[*227]  has  no  right  to  assign  dower  out  *  of  a  mortgaged 

estate,^  yet  if  the  mortgagor  die  seised  of  land,  dower 
may  be  set  off  to  his  widow  by  the  judge,  if  neither  the  mort- 
gagee, nor  heirs  or  devisees  of  the  mortgagor  object.^  In  re- 
spect to  Vermont,  the  propositions  above  stated  as 'to  juris- 
diction do  not  apply,  because  courts  of  probate  there  have 
exclusive  jurisdiction  in  assigning  dower.^  In  England  and 
in  several  of  the  States,  courts  of  equity  and  common  law 
have  concurrent  jurisdiction  in  many  cases  respecting  dower.^ 

1  Owen  V.  Peacock,  38  111.  33. 

2  Sheaffe  v.  O'Neil,  9  Mass.  9 ;  French  v.  Crosby,  23  Me.  276  ;  Matter  of  Wat- 
kins,  9  Johns.  246  ;  Holman  v.  Holman,  5  S.  &  M.  559;  Ware  v.  Washington,  6 
S.  &  M.  737 ;  Bisland  v.  Hewitt,  11  S.  &  M.  164;  Thrasher  v.  Pinckard,  23  Ala. 
616. 

8  Parker  v.  Hardey,  4  Bradf.  15. 

*  .Jackson  v.  Hixon,  17  Johns.  123  ;  Tilson  v.  Thompson,  10  Pick.  359. 

'  Raynham  v.  Wilraarth,  13  Met.  414. 

6  Henry's  case,  4  Cush.  257.  ^  Danforth  v.  Smith,  23  Vt.  247 

8  2  Crabb,  Real  Prop.  187 ;  Herbert  v.  Wren,  7  Cranch,  376. 


CH.  VII.  §  5.]  DOWER.  277 

In  England  this  has  been  the  case  since  the  time  of  Elizabeth, 
and  has  become  much  the  more  usual  mode  of  recovering 
dovver.i  But  where  there  is  this  concurrent  jurisdiction,  the 
rules  of  law  which  they  apply  are  alike  in  both  courts.^  This 
right  of  concurrent  jurisdiction  has  been  exercised  in  the 
courts  of  the  United  States  in  the  cases  above  cited,  and  in 
New  York,  New  Jersey,  Maryland,  Alabama,  Vu-ginia,  North 
Carohna,  and  IlHnois.^  But  in  some  cases,  as  in  equitable 
estates  for  instance,  it  will  be  seen  hereafter  that  courts  of 
equity  have  exclusive  jurisdiction.  It  will  therefore  be 
proper  to  consider  the  remedies  at  the  common  law  by  them- 
selves. 

12,  Dower  should  be  set  out  to  the  widow  within  the  time 
of  her  quarantine,  and  it  is  often  said  she  may  bring  her  action 
at  law  for  its  recovery  if  not  set  out  within  that  time.^  And 
as,  at  common  law,  no  damages  could  be  recovered  in  a  real 
action,  it  does  not  seem  to  have  been  necessary  to  make  a  de- 
mand for  dower  before  commencing  the  action.^  But  if  no 
such  demand  is  made,  the  tenant  may  plead  tout  temps  prist  in 
bar  of  any  claim  for  damages.  And  as  by  the  statute  of  Mer- 
ton,  damages  are  recoverable  in  an  action  of  dower,  a 
demand  *  is,  practically,  uniformlj^  made  preliminary  [*228] 
to  the  commencement  of  the  action.^ 

13.  In  some  of  the  States  a  demand  must  be  made  before 
commencing  an  action,  and  the  time  within  which,  after  such 
demand  is  made,  it  may,  and,  if  brought  at  all,  must  be  com- 
menced, is  regulated  by  their  local  statutes.  In  Massachusetts 
it  must  be  made  of  the  person  who  is  seised  of  the  freehold, 
and  the  action  may  not  be  commenced  until  one  month  after 
such  demand,  and  must  be  within  one  year.^    And  this  demand 

1  Perkins,  §  317  ;  2  Crabb,  Real  Prop.  187. 

2  Potier  V.  Barclay,  15  Ala.  439  ;  Mayburry  v.  Brien,  15  Pet.  21. 

8  Badgley  v.  Bruce,  4  Paige,  Ch.  98 ;  Hartshorne  v.  Hartshorne,  1  Green,  Ch. 
849 ;  Wells  v.  Beall,  2  Gill  &  J.  468 ;  Kiddall  v.  Trimble,  1  Md.  Ch.  Dec.  143 ; 
Blunt  V.  Gee,  5  Call,  481 ;  Campbell  v.  Murphy,  2  Jones,  Eq.  357  ;  Blain  v.  Har- 
rison, 11  111.  384;  Osborne  v.  Horine,  17  111.  92. 

*  2  Crabb,  Real  Prop.  140;  1  Bright,  Hus.  &  Wife,  863;  4  Kent,  Com.  63. 

6  Stearns,  Real  Act.  312. 

6  Stearns,  Real  Act.  813;  Co.  Lit.  32  b;  Watson  v.  Watson,  10  C.  B.  3, 
70  Eng.  Com.  Law,  5,  n. ;  Hitchcock  v.  Harrington,  6  Johns.  290. 

1  Ford  V.  Erskine,  45  Mass.  484.     Gen.  Stat.  c.  135,  §  2, 


278  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

is  a  personal  one,  and  is  required  to  be  made  upon  every  person 
who  is  tenant,  though  he  be  a  tenant  in  common  with  others.^ 
And  it  may  be  made  by  attorney .^  But  a  demand  for  dower 
in  one  parcel  of  land  which  belongs  to  two  persons  in  severalty, 
must  be  made  upon  each  separately.  A  joint  demand  would 
not  be  ffood  as  to  either.^  The  heir  or  tenant  therefore  has 
one  month  after  such  demand  in  which  to  assign  the  dower. 
And  he  may  always  protect  himself  against  a  suit,  if  after  such 
demand  he  proceeds  to  set  out  dower  to  the  widow  fairly  to  the 
extent  of  her  right,  for  by  so  doing  he  acquires  a  good  and 
legal  defence  against  any  further  claim.*  In  New  York,  no 
previous  demand  is  required  in  order  to  give  the  widow  her 
action,  which  in  that  State  is  in  the  form  of  ejectment,  instead 
of  the  common-law  form.^  Nor  is  it  necessary  to  make  demand 
of  the  heir  where  husband  died  seised  in  order  to  maintain  an 
action  for  dower  in  New  Jersey  ;  nor  can  tout  temps  prist  be 
pleaded  to  the  action.^  It  has  been  held  to  be  sufficient  to  de- 
mand the  dower  of  the  minor  and  his  guardian,  where  the  heir 
who  is  to  set  it  out  is  under  age.'''  Although  it  is  usual  to 
demand  dower  in  writing,  it  is  not  necessary  to  do  so  ;  it  may 
be  done  by  parol ;  ^  and  the  one  making  it  may  be  appointed 
by  parol.^     So  it  may  be  demanded  by  an  attorney ;  nor  is 

it  necessary  that  the  power  of  such  attorney  should 
[*229]  be  in  writing.^'^     And  in  Watson  v.  Watson,^!  *  above 

cited,  where  the  son  of  the  demandant  "  asked  him 
(the  tenant)  if  he  would  pay  his  mother  her  thirds,"  to 
which  he  replied,  "No,"  the  demand  was  held  good,  no  ques- 
tion having  been  raised  as  to  the  authority  of  the  son  to  make 
such  request.  But  if  a  power  of  attorney  be  given  in  writ- 
ing, it  must  contain  sufficient  authority  to  make  the  requisite 
demand,  or  it  will  be  of  no  avail.  Therefore  where  the  power 
authorized  the  agent   to   demand  dower  in  the  "  aforesaid 

i  Burbank  v.  Day,  12  Met.  557.  =  Stevens  v.  Reed,  37  N.  H.  49. 

3  Pond  V.  Johnson,  9  Gray,  193.  *  Baker  v.  Baker,  4  Greenl.  670. 

5  Jackson  v.  Churchill,  7  Cow.  287 ;  Ellicott  v.  Mosier,  3  Seld.  201 ;  s.  c.  11 
Barb.  574. 

6  Hopper  V.  Hopper,  2  N.  J.  715.  ^  Young  v.  Tarbell,  37  Me.  509. 

8  Co.  Lit.  32  b ;  Baker  v.  Baker,  4  Greenl.  67 ;  Page  v.  Page,  6  Cush.  196. 

9  Lothrop  V.  Foster,  51  Me.  367. 

10  Luce  V.  Stubbs,  35  Me.  92.  "  Watson  v.  "Watson,  10  C.  B.  3 


CH.  VII.  §  5.]  DOWER.  279 

premises,"  but  no  premises  have  been  mentioned,  it  was  held 
so  defective  that  no  demand  under  it  would  lay  the  founda- 
tion for  an  action.^  No  great  particularity  is  required  in  the 
description  of  the  estate  out  of  which  the  dower  is  demanded. 
It  will  be  sufficient  if  it  give  notice  to  the  tenant  to  what  land 
it  means  to  refer.^  It  is  enough  that  the  demand  apprise  the 
tenant,  with  reasonable  certainty,  of  the  claim  made  upon 
him.3  The  demand  must  be  made  of  the  tenant  of  the  free- 
hold, though  it  need  not  be  made  upon  the  land.*  And  a 
demand  so  made  will  be  sufficient,  though  such  tenant  were 
afterwards  to  convey  his  lands  before  suit  brought,  and 
though  the  suit  must  in  that  case  be  against  another  person, 
who  is  the  tenant  of  the  freehold  when  the  action  is  com- 
menced.^ 

14.  If  the  widow  shall  have  taken  the  proper  preliminary 
measures  without  success,  she  is  entitled  to  an  action  for  the 
recovery  of  her  dower  with  damages  for  its  detention,  and  a 
precept  directed  to  the  sheriff  requiring  him  to  cause  her 
dower  to  be  set  off  and  possession  delivered  to  her,  and  to 
enforce  the  payment  of  the  damages  which  a  jury  shall  have 
ascertained.^  This  is  one  of  the  three  real  actions  which  were 
retained  in  England  under  the  repealing  statute  of  3  &  4 
Wm.  IV.  c.  7,  §  36,  the  other  two  being  quare  impedit''  and 
ejectment.  It  is  one  of  the  two  retained  in  Massa- 
chusetts, the  other  being  a  writ  of  *  entry  upon  dis-  [*230] 
seisin.^     There  were  formerly  two  forms  of  action  of 

1  Sloan  V.  Whitman,  5  Cush.  532. 

2  Haynes  v.  Powers,  2  Fost.  (N.  H.)  590  ;  Atwood  v.  Atwood,  22  Pick.  283  j 
Bear  v.  Snyder,  11  Wend.  592  ;  Ayer  v.  Spring,  10  Mass.  80. 

3  Davis  V.  Wallcer,  42  N.  H.  482. 
*  Luce  V.  Stubbs,  85  Me.  92. 

5  Barker  v.  Blake,  36  Me.  433 ;  Watson  v.  Watson,  70  Eng.  Com.  Law,  5,  n.  ; 
Mass.  Gen.  Stat.  1860,  c.  135,  §  5;  Parker  v.  Murphy,  12  Mass.  485. 

6  2  Bl.  Cora.  136  ;  1  Bright,  Hus.  &  Wife,  369  ;  1  Eolle,  Abr.  683  ;  Stearns, 
Real  Act.  311-319. 

7  As  this  action  is  designed  to  try  a  disputed  title  to  an  advowson,  or  the  right 
of  presentation  to  a  church,  there  is  no  action  answering  to  it  in  the  forms  in 
use  in  the  United  States.  Actions  of  dower  and  quare  imprdit,  as  special  ac- 
tions, are  now  done  away  with,  and  dower  nmst  be  sued  for  by  writ  and  sum- 
mons as  in  any  other  action,  by  the  common  law.  Procedure  Act  of  1860.  Upon 
the  writ  is  indorsed  a  notice  that  the  plaintiff  intends  to  declare  in  dower. 
Broom's  Com.  Law,  119. 

8  Gen.  Stat.  c.  134,  §  1 ;  c.  135,  §  1.    In  the  writ  of  entry,  in  Massachusetts, 


280  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

dower.  But  the  form  in  use  in  this  country  answers  most 
nearly  to  that  known  to  the  common  law  as  "  the  writ  of 
dower  unde  nihil  hahet.'"  ^  It  must  be  brought  in  the  county 
where  the  land  lies,  like  all  real  actions,^  and  lies  only  against 
the  tenant  of  the  freehold  at  the  time  of  commencing  the  ac- 
tion.3  And  this,  as  has  been  before  stated,  though  he  who 
was  tenant  of  the  freehold  when  the  demand  was  made,  shall, 
in  the  mean  time,  have  conveyed  to  another  tenant.^  Nor 
can  the  tenant,  though  a  minor,  have  the  ordinary  privilege 
of  an  infant  defendant  in  a  real  action,  of  having  the  "  parol 
demur,"  that  is,  of  having  the  action  continued  in  court  till 
he  arrive  at  full  age.  And  the  obvious  reason  is,  that  the 
widow  is  supposed  to  need  the  enjoyment  of  her  dower  for 
her  immediate  support.^  In  some  States  the  plea  of  non-tenure 
may  be  pleaded  in  bar  of  such  an  action.^  In  others,  it  must, 
to  avail,  be  pleaded  in  abatement.'  But  the  suit  may  be 
against  the  tenant  of  the  freehold,  though  he  holds  by  wrong, 
such  as  a  disseisor,  abator,  or  intruder.^  So  if  the  owner  of 
the  estate  shall  have  bargained  it  away,  but  the  deed  has  not 
yet  been  delivered,  he  will  be  the  party  to  be  sued.^  But  in 
New  York,  the  action  being  ejectment,  it  may  be  maintained 
against  any  tenant  in  possession,  whether  a  freeholder  or  not.^** 
The  i:)roper  action  of  dower  cannot  be  a  joint  one  against  the 
several  tenants  of  separate  parcels  of  estate  though  originally 
derived  from  the  husband,  but  each  tenant  must  be  sued  sep- 
aratel}^  in  respect  to  the  parcel  of  which  he  is  tenant. ^^     The 

the  demandant  not  only  recovers  damages  covering  mesne  profits,  but  under  a 
state  of  things  provided  for  by  statute,  the  tenant  may  claim  compensation  for 
betterments  made  by  him  while  in  possession  of  the  demanded  premises.  Gen. 
Stat.  c.  134,  §§  13,  18,  19  ;  Haven  v.  Adams,  8  Allen,  368. 

1  4  Kent,  Com.  63 ;    Stearns,  Real  Act.  302. 

2  Stearns,  Real  Act.  87. 

»  1  Bright,  Hus.  &  Wife,  398 ;  Hard  v.  Grant,  3  Wend.  340;  Miller  v.  Beverly, 
1  Hen.  &  M.  367  ;  EUicott  v.  Mosier,  11  Barb.  574. 
<  Barker  v.  Blake,  36  Me.  433. 

s  Stearns,  Real  Act.  107  ;  1  Bright,  Hus.  &  Wife,  364. 
6  Casporus  v.  Jones,  7  Penn.  St.  120. 
^  Manning  v.  Laboree,  33  Me.  343. 

8  Norwood  V.  Morrow,  4  Dev.  &  Bat.  442 ;  Otis  v.  Warren,  16  Mass.  53. 

9  Jones  V.  Patterson,  12  Penn.  St.  149. 

10  EUicott  V.  Mosier,  3  Seld.  201 ;  Ellis  v.  Ellis,  4  R.  I.  110. 

11  Fosdiuk  ('.  Gooding,  1  Greenl.  30;   1  Roper,  Hus  &  Wife,  437;   Barney  v. 
Frowner,  9  Ala.  901. 


CH.  VII.  §  5.]  DOWER.  281 

action,  moreover,  is  so  personal  in  its  nature  on 
*the  part  of  the  demandant,  that  if  she  dies  during  [*231] 
its  pendency  the  suit  abates.^  In  Atkins  v.  Yeomans, 
judgment  for  dower  was  rendered,  and,  by  agreement  be- 
tween the  parties,  certain  persons  were  to  act  as  commission- 
ers to  set  out  the  dower  and  assess  the  damages,  to  be  reported 
to  the  court  for  adjudication,  and  the  demandant  died  before 
they  had  made  their  return.  The  court  dechned  to  enter 
judgment  for  damages  and  costs,  and  they  add:  "  Tlie  action 
died  with  the  demandant,  and  the  judgment  for  damages  can- 
not now  be  rendered."  ^  *  It  is  no  objection  to  the  action  that 
some  person  other  than  the  tenant  holds  a  mortgage  upon  the 
premises,  so  that  the  widow  is  only  dowable  of  an  equity  of 
redemption,  unless  the  tenant  holds  under  or  by  the  right  of 
such  mortgage.^ 

15.  If  she  prevails  in  her  action,  she  obtains  judgment  for 
her  dower  and  damages  for  its  detention.* 

16.  Damages,  as  alreadj^  remarked,  were  not  originally  re- 
coverable in  an  action  of  dower.  They  were  first  given  by 
the  statute  of  Merton,  ch.  1,  in  an  action  against  the  heir  for 
the  land  of  which  the  husband  died  seised,  and  are  declared 
to  be  "  the  value  of  the  whole  dower,"  "  from  the  time  of 
the  death  of  the  husband  unto  the  day  that  the  said  widow 
by  judgment  of  our  court  have  recovered  seisin  of  her  dower," 
&c.*  But  by  the  English  law,  damages  were  not  recoverable 
of  any  but  the  heir  or  abator  or  their  assigns,  in  respect 
to  lands  of  which  the  husband  died  seised.^     The  vendee 


*  Note.  —  By  the  statute  of  Maryland  the  action  of  dower  survives.     1  Bil- 
liard, Real  Prop.  154. 

1  Rowe  V.  Johnson,  19  Me.  146  ;   Sandback  v.  Quigley,  8  Watts,  460 ;  Atkins 
V.  Yeomans,  6  Met.  438. 

2  Atkins  V.  Yeomans,  6  Met.  538.     See  also  Rowe  v.  Johnson,  19  Me.  146 ; 
Tumey  v.  Smitli,  14  111.  242. 

3  Smith  V.  Eustis,  7  Greenl.  41 ;  Thompson  v.  Boyd,  2  N.  J.  548  j  Manning  »f 
Laboree,  33  Me.  343  ;  Hastings  v.  Stevens,  9  Fost.  (N.  H.)  564. 

4  Gen.  Stat.  c.  135,  §  4 ;  Leavitt  v.  Lamprey,  13  Pick.  382. 
6  2d  Inst.  80. 

6  Co.  Lit.  32  b ;  Stearns,  Real  Act.  312 ;  Thompson  v.  Colier,  Yelv.  112 ; 
Fisher  v.  Morgan,  Coxe,  125. 


282  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

[*232]  of  the  heir  therefore  would  *  be  liable  for  damages  in 
the  same  way  as  the  heir  himself,^  but  not  the  alienee 
of  the  husband.2  The  rule  and  measure  of  damages  as  to  the 
mode  of  computing  them  seems  to  be  the  same  in  England 
and  here,  that  is,  one  third  of  the  value  of  the  annual  rents 
and  profits  of  the  estate  out  of  which  dower  is  claimed.^  But 
in  respect  to  the  length  of  time  for  which  this  allowance  shall 
be  made,  there  is  quite  a  difference  in  the  laws  of  the  differ- 
ent States.*  In  Virginia  the  widow  can  recover  damages 
against  her  husband's  alienee  in  proceedings  in  equity  from 
the  date  of  the  subpoena.*  In  Pennsylvania  she  recovers 
fi'om  the  death  of  the  husband,  where  he  died  seised,  although 
the  tenant  may  have  been  in  possession  but  a  part  of  the  time 
since.^  But  in  Delaware,  in  such  case,  she  could  recover 
damages  only  from  the  time  of  purchase  by  the  tenant.^  In 
Alabama,  if  the  action  be  against  the  heir,  damages  are  al- 
lowed from  the  death  of  the  husband.  If  against  a  purchaser, 
they  cover  only  the  time  from  the  commencement  of  the  suit.'^ 
In  Ohio  and  South  Carolina  no  damages  are  allow"ed  in  an 
action  of  dower.^  In  Missouri  and  Wisconsin  the  widow 
has  damages  against  the  hen-  from  the  death  of  tlie  husband ; 
against  husband's  alienee,  from  the  time  of  the  demand 
for  dower.^  In  Massachusetts,  damages  are  allowed  from 
time  of  the  demand,  if  the  action  be  against  the  person 
of  whom  demand  is  made.  If  against  a  subsequent  pur- 
chaser, they  are  only  allowed  from  the  time  of  his  purchase, 

*NoTE.  —  The  rule  as  above  stated  seems  to  be  the  settled  law,  although  the 
point  is  raised  and  authorities  tending  to  sustain  it  are  cited,  that  an  extra  sum 
should  be  allowed  for  the  illegal  detention  of  the  dower,  in  Fisher  v.  Morgan, 
Coxe,  125. 

1  Hitchcock  V.  Harrington,  6  Johns.  290. 

2  2  Crabb,  Heal  Prop.  120  ;  Erabree  v.  Ellis,  2  Johns.  119. 

8  Winder  ?;.  Little,  4  Yeates,  152;  Sedgwick  on  Damages,  130;  Layton  i>. 
Butler,  4  Harring.  507 ;  4  Kent,  Com.  65. 

4  Tod  V.  Baylor,  4  Leigh,  498.  ^  Seaton  v.  Jamison,  7  Watts,  533. 

6  Newbold  v.  Ridgeway,  1  Harring.  55 ;  Green  v.  Tennant,  2  Harring.  336. 

7  Beavers  v.  Smith,  11  Ala.  20. 

8  Hey  ward  v.  Cuthbert,  1  McCord,  386 ;  Bank  of  United  States  v.  Dunseth, 
10  Ohio,  18. 

9  McClanahan  v.  Porter,  10  Mo.  746 ;  Thrasher  v.  Tyack,  15  Wis.  259. 


CH.  YII.  §  5.]  DOWER.  283 

*  and  a  separate  action  on  the  case  may  be  main-  [*233] 
tained  against  the  prior  tenant  to  recover  damages 
from  the  time  of  demand  to  the  time  of  his  conveyance.^  The 
law  is  the  same  in  New  York,  in  respect  to  a  purchaser,  and 
damages  are  recoverable  from  the  time  of  his  purchase  only.^ 
And  where  the  husband  died  seised,  the  widow  was  held  en- 
titled to  rents  and  profits  from  the  time  of  his  death,  to  be 
apportioned  upon  the  heirs  and  terre-tenants  according  to  the 
length  of  time  they  occupied.^  In  Maryland,  if  the  widow 
recover  dower  at  common  law  against  the  husband's  alienee, 
she  may  afterwards  recover,  by  proceedings  in  equity,  the 
rents  and  profits  from  the  time  dower  was  demanded.*  In 
Maine,  New  Hampshire,  and  Rhode  Island,  damages  are  re- 
coverable only  from  demand.  In  New  Jersey,  Pennsylvania, 
Tennessee,  the  same  rule  as  to  damages  is  applied  as  in  the 
English  courts,  where  the  claim  is  against  the  alienee  of  the 
husband,  and  they  are  not  allowed  except  where  the  husband 
dies  seised.^  And  in  New  York,  in  addition  to  the  restriction 
above  mentioned,  the  widow  cannot  claim  damages  for  more 
than  six  years,  nor  for  any  time  anterior  to  her  demand  made.^ 
In  North  Carolina,  in  a  process  in  equity  to  recover  dower,  a 
widow  was  held  entitled  to  an  account  for  mesne  profits  from 
the  death  of  her  husband  up  to  the  assignment  of  dower.  And 
where  buildings  which  had  been  insured  were  burned  after 
the  death  of  the  husband,  and  before  dower  was  assigned,  she 
was  held  entitled  to  a  jpro  rata  share  of  the  insurance  money.'^ 
These  damages,  as  already  stated,  are  ordinarily  found  by  the 
jury ;  but  if  there  be  a  judgment  by  default,  the  court  may 
assess  the  damages  by  assent  of  demandant,  or  send  the  ques- 
tion to  a  jury.^  * 

*  Note.  —  The  mode  of  assessing  damages  in  the  English  courts  varies  in 
gome  respects  from  that  in  Massachusetts,  as  will  be  seen  by  referring  to  2 
Saund.  45,  n.  4,  or  Co.  Lit.  32  b,  n.  4 ;  but  the  subject  hardly  seems  to  be  of 
sufficient  importance  for  the  student  of  American  law  to  occupy  more  space  in 
this  work. 

1  Gen.  Stat.  q.  135,  §§  4,  5.  2  Russell  v.  Austin,  1  Paige,  Ch.  192. 

8  Hazen  v.  Thurber,  4  Johns.  Ch.  604.        4  Sellman  v.  Bowen,  8  Gill  &  J.  60. 
8  Fisher  v.  Morgan,  Coxe,  125  ;  Sharp  v.  Pettit,  4  Dall.  212 ;  Waters  v.  Gooch, 
6  J.  J.  Marsh.  586 ;  Co.  Lit.  32  b  ;  Doct.  &  Stud.  Dial.  2,  c.  13. 

6  Bell  V.  New  York,  10  Paige,  Ch.  70. 

7  Campbell  v.  Murphy,  2  Jones,  Eq.  357,  363,  364. 

8  Stearns,  Real  Act.  311;  Perry  v.  Goodwin,  6  Mass.  498. 


284  LAW   OP   REAL   PROPERTY.  [BOOK   L 

17.  The  judgment  in  an  action  of  dower  is  regarded  as 

having  a  double  character,  the  recovery  of  seisin  being 
[*234]  by  force  of  *  the  common  law,  that  of  damages  and 

costs  by  force  of  the  statutes  of  Merton  and  Glouces- 
ter.^ *  And  these  are  so  far  indeiDendent  of  each  other,  that 
the  demandant  may  have  a  complete  judgment  for  seisin  of 
her  dower,  with  damages  or  without  them,  as  the  case  may 
be.2  And  if  verdict  be  for  both,  where  no  damages  are  recov- 
erable, the  court  will  treat  the  finding  as  to  the  damages  as 
surplusage,  and  render  judgment  for  the  seisin.^  But  unless 
there  be  a  judgment  for  her  seisin  of  dower,  she  cannot  have 
one  for  damages,  —  so  that  if  by  her  death  a  recovery  for  the 
former  fails,  her  estate  has  no  remedy  by  way  of  damages  for 
detention  of  the  dower.*  And  where  the  demandant  died 
after  judgment,  but  before  a  writ  of  seisin  had  issued,  it  was 
held  that  the  whole  proceedings  died  with  her.^  Nor  can  a 
demandant  in  an  action  of  dower,  as  may  be  done  in  other 
real  actions,  enter  upon  the  land  recovered  by  the  judgment 
without  a  formal  writ  of  entry.  And  the  reason  is,  that  in 
one  case  the  demandant  sues  for  and  establishes  his  right 
to  a  specific  parcel  of  land ;  in  the  other,  the  part  she  is 
to  have  can  only  be  ascertained  by  the  assignment  of  her 
dower.^ 

18.  For  this  reason,  after  judgment  in  her  favor,  she  may 
have  a  writ  of  habere  facias  seisinam  directed  to  the  sheriff, 
commanding  him  to  cause  her  dower  to  be  set  out,  and  seisin 
thereof  delivered  to  her,  and  to  make  a  return  of  his  doings 
thereon,''  which  writ  may  contain  a  clause  oi  fieri  facias  for  the 

*  Note.  —  The  statutes  of  Merton  and  Gloucester  are  a  part  of  the  common 
law  of  Delaware.    Layton  v.  Butler,  4  Harring.  507. 


1  2  Crabb,  Real  Prop.  186 ;  Taylor  v.  Brodrick,  1  Dana,  345 ;  Sharp  v.  Pettit, 
4  Dall.  212. 

2  2  Saund.  45,  n.  4 ;  Co.  Lit.  32  b,  n.  4 ;  Waters  v.  Gooch,  6  J.  J.  Marsh.  586. 

3  Shirtz  V.  Shirtz,  5  Watts,  255. 

*  Atkins  u.  Yeomans,  6  Met.  438;  Rowe  v.  Johnson,  19  Me:  146;  Turney  v. 
Smith,  14  111.  242 ;  Tuck  v.  Fitts,  18  N.  H.  171. 

5  Hildreth  v.  Thompson,  16  Mass.  191. 

6  Hildreth  v.  Thompson,  16  Mass.  191 ;  Co.  Lit.  34  b;  Stearns,  Real  Act.  318. 
^  Rastell,  Entries,  235. 


CH.  VII.  §  5.]  DOWER.  285 

recovery  of  damages  under  such  a  form  of  judgment.^ 
*  But  the  form  of  the  writ  of  seism,  and  of  the  precept  [*235] 
to  the  sheriff,  would  depend  upon  the  law  of  the  par- 
ticular State  where  the  judgment  is  rendered.  Thus,  the  form 
in  Rastell  is  simply  a  command  to  the  sheriff  to  make  an  as- 
signment and  full  seisin  of  a  third  part  of  the  lands  described, 
who  in  his  return  states  that  he  has  so  done.^ 

19,  In  some  of  the  States  the  sheriff  causes  dower  to  be  set 
out  by  commissioners,  who  act  under  oath.  But  though  the 
sheriff  is  bound  by  his  precept  to  make  a  return  of  his  doings 
into  the  court  from  which  it  issued,  the  demandant  is  not 
obliged  to  wait  until  such  return  is  made  and  accepted,  before 
entering  upon  and  taking  possession  of  her  dower  land.  She 
may  enter  as  soon  as  the  assignment  is  made  and  seisin  given, 
subject  only  to  the  hazard  of  having  her  title  defeated  by  some 
irregularity  in  the  proceedings.^  It  sometimes  happens,  how- 
ever, that  the  dower  lands  of  the  widow  are  subject  to  a  term 
of  years  created  before  marriage.  If  there  were  no  rent  issu- 
ing out  of  such  term,  the  widow  takes  her  judgment  with  a 
cessat  executio  until  the  term  shall  have  expired.*  If,  in  the 
lease  or  grant  of  such  a  term,  rent  was  reserved  and  payable, 
the  widow  might  have  her  dower  set  off  in  the  premises  by 
metes  and  bounds,  and,  as  reversioner,  claim  one  third  of  the 
rents  and. profits  without  any  cessat  executio  upon  her  judg- 
ment.^ 

20.  As  has  been  more  than  once  stated,  the  sheriff  must, 
ordinarily,  execute  his  precept  by  assigning  the  dower  by 
metes  and  bounds,  where  the  same  can  be  done.^  How  far 
he  may  or  must  do  this  in  respect  to  separate  and  distinct  par- 
cels of  land,  may  depend  upon  circumstances.  If  the  lands 
were  aliened  in  the  life  of  the  husband,  the  dower  of  the  wife 


'  Stearns,  Real  Act.  317 ;  Benner  v.  Evans,  3  Penn.  454. 

■-!  Rastell,  Entries,  235. 

8  Co.  Lit.  87  b,  n. ;  Parker  v.  Parker,  17  Pick.  236;  Mansfield  v.  Pembroke,  5 
Pick.  449. 

*  Co.  Lit.  208  a,  n.  105 ;  Tud.  Cas.  47 ;  Maundrell  v.  Maundrell,  7  Ves.  567. 

»  Co.  Lit.  32  a ;  Stoughton  v.  Leigh,  1  Taunt.  402;  "Weir  v.  Tate,  4  Ired.  Eq. 
264. 

6  Perking  §  414 ;  Steams,  Real  Act.  318 ;  Pierce  v.  Williams,  2  Penning. 
521. 


286  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

must  be  set  out  separately  in  the  land  of  each  alienee.^ 
[*236]  If  the  lands  out  of  which  a  *  widow  is  dowable,  and 

which  are  held  by  the  same  person,  consist  of  parcels 
of  meadow,  pasture,  and  corn  land,  the  sheriff  is  not  bound 
to  set  out  a  part  of  each  ;  he  may  assign  it  all  from  one  if  it  is 
reasonable  so  to  do.^  But  in  such  and  similar  cases,  he  is 
bound  to  exercise  sound  and  reasonable  discretion.  And 
where  he  set  out  to  a  widow  as  her  dower,  a  third  part  by 
metes  and  bounds  of  every  chamber  in  a  house,  the  assign- 
ment was  set  aside,  and  a  fine  imposed  upon  the  sheriff  for 
contempt  in  so  doing.^  But  where  certain  rooms  in  a  house 
were  set  out  with  the  privilege  of  using  the  halls,  stairways, 
&c.  for  access  to  them,  it  was  held  to  be  a  good  assignment.* 
An  assignment  which  gave  the  widow  a  right  to  cut  wood 
upon  or  depasture  land  not  set  to  her  for  dower,  would  not  be 
valid.  ^ 

Where  from  the  nature  of  the  estate  out  of  which  dower  is 
to  be  assigned,  it  cannot  be  done  by  metes  and  bounds,  it  may 
be  done  by  giving  a  share  in  common  of  the  estate,  or  an  alter- 
nate occupation,  or  otherwise  as  may  best  serve  the  purposes 
of  the  law.  In  many  cases  a  widow  is  dowable  of  money 
when  this  is  the  proceeds  of  land.  But  this  class  of  cases 
will  be  considered  hereafter,  when  equitable  dower  is  spoken 
of.  An  instance  of  the  former  method  of  assigning,  where  it 
cannot  be  done  by  metes  and  bounds,  would  be  that  out  of  an 
estate  held  by  the  husband  as  tenant  in  common.  The  sheriff 
cannot  set  apart  any  portion  of  the  estate  as  hers,  and  the 
widow  becomes  by  the  assignment  tenant  in  common  with  the 
other  owners  of  the  land.^  The  case  of  a  mill  would  be 
another  example.  In  England  she  may  be  endowed  of  every 
third  toll  dish,  or  of  a  third  part  of  the  profits  of  the  mill,  and, 
it  is  added,  she  "  may  grind  there  toll  free."  "^ 

1  Cook  V.  Fisk,  Walker,  423 ;  Coulter  v.  Holland,  2  Earring.  330 ;  Co.  Lit. 
85  a ;  Doe  v.  Gwinnell,  1  Q.  B.  682. 

2  1  Bright,  Hus.  &  Wife,  367. 

3  2  Crabb,  Real  Prop.  147  ;  1  Bright,  Hus.  &  Wife,  370  ;  Abingdon's  case,  cited 
in  Howard  v.  Candish,  Palm.  264. 

*  White  V.  Story,  2  Hill,  543.  '  Jones  v.  Jones,  Busbee,  N.  C  177. 

«  Fitzh.  N.  B.  149;  1  Bright,  Hus.  &  Wife,  371. 

1  2  Crabb,  Real  Prop.  148 ;  Perkins,  §  415 ;  1  Bright,  Hus.  &  Wife,  372. 


CH.  VII.  §  5.]  DOWER.  237 

By  the  law  of  Massachusetts,  where  a  mill  or  other  tene- 
ment cannot  be  divided  without  damage  to  the  whole, 
dower  is  assigned  of  *  the  rents,  issues,  and  profits  [*237] 
thereof,  to  be  had  in  common  with  the  other  owners 
of  the  estates.^     So  in  the  case  of  a  ferry,  where  a  share  of 
its   use,  or  of  the  profits,  or  a  share  of  the  time,  should  be 
assigned  for  dower.^    Mines  constitute  a  special  class  of  estates, 
out  of  which  a  widow  may  be  dowable,  and  the  mode  of  assign- 
ing dower  therein  was  fully  considered  in  the  case  cited  below.^ 
It  was  there  held  that  if  the  mine  or  mines  formed  a  part  of 
the  value  of  the  estate  of  which  dower  is  to  be  had,  it  is  not 
necessary  that  any  part  of  such  mines  should  be  set  out  as 
dower,  provided  the  widow  have  one-third  part  in  value  of 
the  entire  estate  assigned  to  her  out  of  other  parts  of  it.    If  the 
mine  is  embraced  within  what  is  set  out  by  metes  and  bounds, 
it  need  not  be  described,  for  if  open,  it  may  be  used  and 
worked  as  part  of  the  dower  for  her  own  exclusive  use.     If 
any  part  of  a  mine  or  mines  is  set  out  which  does  not  form  a 
part  of  the  estate  which  is  defined  by  metes  and  bounds,  but 
still  forms  a  part  of  the  general  estate  of  which  she  is  dowable, 
it  should  be  specifically  described.     If  the  mine  or  mines  be 
in  another  person's  land,  and  open  and  wrought,  and  the  same 
can  be  divided  by  metes  and  bounds  so  as  not  to  prevent  the 
other  owners  or  proprietors  from  enjoying  a  proper  proportion 
of  the  profits  thereof,  her  dower  should  be  so  divided  and 
assigned.     But  if  this  cannot  be  done,  the  assignment  should 
be  so  made  as  to  give  the  widow  one-third  part  of  the  profits, 
as  by  a  separate  alternate  enjoyment  of  the  whole  for  short 
periods,  or  by  giving  her  a  certain  proportion  of  the  profits  of 
such  mine.*     In  making  the  assignment  of  dower,  the  estimate 
of  the  third  part  has  reference  to  the  productive  value  of  the 
estate  and  not  the  quantity.     Such  part  of  the  estate  should 
be  set  out  to  her  as  will  give  her  one  third  part  of  the  annual 
income  or  profits  of  the  entire  estate.^     The  time  to  which 
this  estimate  must  refer,  if  the  estate  were  sold  in  the  life  of 

1  Gen.  Stat.  c.  135,  §  8 ;  Stearns,  Real  Act.  319. 

2  Stevens  v.  Stevens,  3  Dana,  371.  3  Stoughton  v.  Leigh,  1  Taunt.  402. 
*  See  Coates  v.  Cheever,  1  Cow.  478,  479 ;  Billings  v.  Taylor,  10  Pick.  460. 

5  Coates  V.  Cheever,  1  Cow.  476  ;  McDanielu.  McDaniel,  3  Ired.  61 ;  Smith  v. 
Smith,  6  Dana,  179 ;  Leonard  v.  Leonard,  4  Mass.  633 ;  Park,  Dow.  265. 


288  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

the  husband,  and  had  been  increased  in  productiveness  by  the 
purchaser,  would  be  that  at  which  the  husband  parted  with 
it.     If  the  husband  die  seised,  it  refers  to  the  time  of  his 

death. ^ 
[*238]       *21.  But  if  either  party  wish  to  raise  objection  to 

the  manner  or  extent  of  the  assignment,  it  should  be 
done  when  the  return  of  the  officer  who  sets  it  out  is  made  to 
the  court.2 

22.  Notwithstanding  what  has  been  said,  the  question  of 
the  time  in  reference  to  which  the  value, or  income  shall  be 
estimated,  has  presented  difficulties  which  have  led  to  differ- 
ent rules  in  different  jurisdictions.  If  the  case  be  one  where 
the  claim  is  made  of  the  heir,  the  rule  is  uniform  in  referring 
to  the  value  and  condition  of  the  estate  as  it  is  when  the 
dower  is  actually  assigned,  unless  he  shall  have  done  acts  to 
deteriorate  it  since  the  death  of  the  husband.  If  he  has  en- 
hanced the  value  of  it,  it  is  his  own  folly  to  have  done  so 
without  first  setting  out  the  dower,  and  he  cannot  claim  to 
have  these  improvements  allowed  to  him  in  making  the  esti- 
mate.^ And  if  the  heir  were  to  sow  the  husband's  lands  after 
his  death,  and  these  were  to  be  set  off  to  the  widow,  he  could 
not  claim  the  crops  as  emblements  belonging  to  him.*  So  if, 
without  the  fault  of  the  heir,  the  estate  be  diminished  in 
value  between  the  death  of  the  husband  and  the  assignment 
of  the  dower,  she  must  bear,  'pro  roita,  this  depreciation.^  Nor 
could  the  sheriff  in  assigning  dower  have  any  regard  to  the 
fact  that  the  estate  had  been  deteriorated  by  the  wrongful 
act  of  the  heir.  He  could  only  set  it  out  in  reference  to  the 
then  condition  of  the  estate.^  The  dowress'  remedy  for  the 
injury  sustained  by  such  deterioration  must  be  sought  by  an 
action  for  damages,'''  though  Judge  Story,  in  Powell  v.  Mon- 
son,^  is  disposed  to  doubt  the  right  of  a  widow  in  such  cases 

1  Davis  V.  Walker,  42  N.  H.  482.  2  Chapman  v.  Schroeder,  10  Ga.  321. 

8  Catlin  V.  Ware,  9  Mass.  209 ;  Tliompson  v.  Morrow,  5  S.  &  R.  290 ;  1  Bright, 
Hus.  &  Wife,  385 ;  Co.  Lit.  32  a  ;  Powell  v.  Monson,  3  Mason,  368,  369, 
*  Parker  v.  Parker,  17  Pick.  236  ;  2d  Inst.  81. 
6  1  Bright,  Hus.  &  Wife,  385 ;  Powell  v.  Monson,  3  Mason,  368. 

6  Co.  Lit.  32  a  ;  Powell  v.  Monson,  3  Mason,  368. 

7  1  Bright,  Hus.  &  Wife,  385;  2  Crabb,  Real  Prop.  138;  1  Roper,  Hus.  & 
Wife,  349. 

8  Powell  V.  Monson,  3  Mason,  368 ;  Campbell  v.  Murphy,  2  Jones,  Eq.  362. 


CH.  VII.  §  5.]     *  DOWER.  289 

to  recover  damages  of  the  heir.  The  questions  in  respect  to 
which  the  chief  difficulty  has  arisen,  relate  to  cases  where  the 
property  was  aliened  by  the  husband  in  his  lifetime,  and  had 
been  diminished  or  enhanced  in  value  between  the 
alienation  *  and  the  time  of  assigning  dower.  In  some  [*239] 
important  particulars  the  English  and  American  law 
differs.  Thus  in  a  recent  case  it  was  held,  "  that  dower  at- 
taches to  the  husband's  real  property  at  the  period  of  his 
death,  according  to  its  then  actual  value,  without  regard  to 
the  hands  which  brought  it  into  the  condition  in  which  it  is 
found."  And  the  court,  Denman,  C.  J.,  cites  with  approba- 
tion the  opinion  of  Sir  Edw.  Sugden,  "  that  the  widovr  is  en- 
titled to  have  assigned  to  her  as  her  dower  so  much  in  value 
as  is  equal  to  a  third  in  value,  according  to  the  condition  of 
the  estate  at  the  time  of  her  husband's  death."  ^  So  far  as 
the  rule  becomes  applicable  to  the  value  of  estates  which  have 
been  deteriorated  by  waste  or  mismanagement  while  in  the 
hands  of  an  alienee  of  the  husband,  it  is  believed  to  be  the 
same  in  both  countries.  The  nature  of  a  wife's  interest  dur- 
ing her  husband's  life  is  such,  that  if  an  alienee  of  the  estate 
cause  a  permanent  damage  to  it,  she  is  without  remedy,  and 
must  therefore  be  content  to  take  her  dower  out  of  the  estate 
as  she  finds  it,  when  her  right  becomes  consummated  by  the 
death  of  her  husband.^  Nor  does  there  appear  to  be  any 
essential  difference  between  the  laws  of  the  two  countries 
where  the  estate  after  the  alienation  by  the  husband,  and  be- 
fore the  assignment  of  the  dower,  has  become  enhanced  or 
diminished  in  value  by  natural  or  extraneous  causes,  inde- 
pendent of  improvements  made  by  the  alienee  himself.  The 
widow  in  such  case  may  share  in  the  increased,  as  she  must 
in  the  decreased  value  of  the  estate.^  Two  or  three  of  the 
cases  cited  will  illustrate  these  propositions.  The  case  of 
Powell  V.  Monson  was  one  where  the  alienees  had  erected 
large  and  expensive  works  for  manufacturing  purposes,  which 

1  Doe  V.  Gwinnell,  1  Q.  B.  682  ;  Campbell  v.  Murphy,  sup.  357,  363. 

2  McClanahan  v.  Porter,  10  Mo.  746  ;  Thompson  v.  Morrow,  5  S.  &  R.  290 ; 
Perkins,  §  329  ;  1  Bright,  Hiis.  &  Wife,  386  ;  Powell  v.  Monson,  3  Mason,  3G8. 

3  Smith  V.  Addlemiin,  5  Blackf.  406 ;  Wms.  Real  Prop.  191,  note ;  1  Cruise, 
Dig.  171;  Powell  v.  Monson,  3  Mason,  375;  Jolinston  v.  Vandyke,  6  McLean, 
422  ;  Braxton  v.  Coleman,  5  Call,  433  ;  Bowie  v.  Berry,  1  Md.  Ch.  Dec.  452. 

VOL.  I.  19 


290  LAW    OF   REAL    PROPERTY.  [BOOK   1. 

enhanced  the  value  of  the  lands  very  much,  independent  of 
the  mere  value  of  the  structures  placed  upon  the  premises. 

Tlie  judge  held  "  that  the  dower  must  he  adjudged  ac- 
[*240]  cording  to  the  value  of  the  land  in  controversy  at  *the 

time  of  the  assignment,  excluding  all  the  increased 
value  from  the  improvements  actually  made  upon  the  premises 
by  the  alienee,  leaving  the  dowress  the  full  benefit  of  any  in- 
crease of  value  arising  from  circumstances  unconnected  with 
these  improvements."  ^  Thompson  v.  Morrow  was  the  case 
of  an  estate  in  the  city  of  Pittsburg,  enhanced  in  value  by 
the  growth  of  and  rise  of  property  in  that  city.  Tilghman, 
C.  J.,  says,  "  Throwing  those  (the  improvements  made  by  the 
purchaser)  out  of  the  estimate,  she  shall  be  endowed  accord- 
ing to  the  value  at  the  time  her  dower  shall  be  assigned."  ^ 
In  the  case  of  Braxton  v.  Coleman,  the  estate  sold  by  the 
husband  had  a  mill  standing  upon  it,  which  was  carried  away 
and  another  was  built  in  its  stead,  and  afterwards  a  third  and 
much  enlarged  one  was  erected,  and  it  was  held  that  the 
widow  could  only  claim  dower  out  of  the  land.  In  New  York, 
owing  to  the  language  of  the  statutes  of  that  State,  the  value 
of  the  estate  at  the  time  of  its  alienation  is  the  criterion  for 
determining  what  proportion  shall  be  set  off  as  the  widow's 
share. ^  And  a  similar  rule  prevails  in  Virginia.*  While  in 
Alabama  it  seems  to  be  left  doubtful  how  far  a  widow  can 
avail  herself  of  the  rise  in  value  of  the  estate  by  extraneous 
causes.^  The  doctrine,  however,  which  is  laid  down  by 
Judge  Story,  and  Ch.  J.  Tilghman,  above  stated,  maybe  con- 
sidered as  in  accordance  with  the  general  policy  of  the  Amer- 
ican law,  and  as  being  generally  the  common  law  of  the 
country.^  And  in  respect  to  the  question  whether,  and  how 
far  a  widow  shall  have  the  benefit  of  improvements  made  by 

1  Powell  V.  Monson,  3  Mason,  375.     See  Gore  v.  Brazier,  3  Mass.  544. 

2  Thompson  v.  Morrow,  5  S.  &  R.  290.     See  4  Kent,  Com.  67-69;  Dunseth 
V.  Bank  of  the  U.  S.,  6  Ohio,  76. 

3  Braxton  v.  Coleman,  5  Call,  483  ;  Walker  v.  Sclmyler,  10  Wend.  480. 

4  Tod  V.  Baylor,  4  Leigh,  498.  ^  Barney  v.  Frowner,  9  Ala.  901. 
e  Wooklridge  v.  Wilkins,  3  How.  (Miss.)  360;  Mosher  v.  Mosher,  15  Me.  371  ; 

Green  v.  Tennant,  2  Harring.  336  ;  Summers  i-.  Babb,  13  III.  483  ;  Sedgwick  on 
Damages,  133  and  note;  Dunseth  v.  Bank  U.  S.,  6  Hammond  (Ohio),  76.  See 
also  4  Kent,  Com.  68. 


CH.  VII.  §  5.]  DOWER.  291 

the  alienee  of  the  husbcand,  the  law  in  the  United  States 
seems  to  be  uniform,  and  will  be  found  to  be  much  more  in 
harmony  with  the  policy  of  a  young  and  thriving  commu- 
nit}'-,  where  new  hands  are  j)urchased  for  the  purpose 
of  *  improving  them  by  the  expenditure  of  money  and  [*241] 
labor,  and  where  villages  and  cities  are  seen  spring- 
ing np  within  the  life  of  a  single  individual.  For  such  a 
community  the  rule  of  the  English  law  would  be  found  alto- 
gether unsuited,  though  it  may  be  well  adapted  to  the  habits 
of  a  people  where  the  inconveniences  growing  out  of  the  exer- 
cise of  dower  rights  have  for  a  long  time  been,  to  a  great 
extent,  avoided  by  marriage  settlements  and  other  similar  pro- 
visions. The  citation  of  a  single  case  from  each  of  several 
States,  out  of  the  many  that  may  be  readily  found  in  the  re- 
ports, will  be  sufficient  to  establish  the  law  of  this  countr}^  to 
be,  that  where  buildings  have  been  erected,  improvements 
made,  or  the  value  of  lands  enhanced  by  money  expended  or 
labor  done  by  the  alienee  of  the  husband,  upon  the  land  out 
of  which  dower  is  claimed,  the  benefit  of  these  is  not  to  be 
shared  by  the  widow.^  Thus,  in  Maine,  where  improve- 
ments had  been  made  b}'  the  alienee,  the  widow  had  such  a 
share  of  the  whole  estate  set  out  to  her  as  would  produce  an 
income  equal  to  one  third  part  of  what  the  whole  estate  would 
produce  if  no  improvements  had  been  made  upon  it  after  it 
had  been  conveyed  b3^the  husband,^  And  in  Alabama,  where 
a  dilapidated  mill  upon  the  premises  was  torn  down  by  the 
alienee  of  the  husband,  and  a  new  and  expensive  structure 
erected  in  its  stead,  it  was  held  that  the  widow  of  the  grantor 
was  not  entitled  to  any  share  of  the  improvements,  and  that 
her  dower  should  be  set  out  with  reference  to  the  value  of 
the  premises  at  the  time  of  the  alienation,  though  the  destruc- 

1  4  Kent,  Com.  65  ;  Humphrey  v.  Phinney,  2  Jolins.  484 ;  Thompson  v.  Mor- 
row, 5  S  &  R.  289;  Catlin  v.  Ware,  9  Mass.  218;  Powell  v.  Monson,  3  Mason, 
£47 ;  Tod  v.  Baylor,  4  Leigh,  498  ;  Leggett  v.  Steele,  4  Wash.  C.  C.  805 ;  Wilson 
}•.  Oatman,  2  Blackf.  223;  Brown  v.  Duncan,  4  McCord,  346;  Wooldridge  v. 
Wilkins,  3  How.  (Miss.)  360;  Larrowe  v.  Beam,  10  Ohio,  498;  Hobbs  v.  Harvey, 
16  Me.  80;  Barney  v.  Frowner,  9  Ala.  901 ;  McClanahan  v.  Porter,  10  Mo.  746; 
Bowie  V.  Berry,  3  Md.  Ch,  Dee.  359 ;  Rawlins  v.  Buttel,  1  Houst.  Del.  224. 

2  Carter  v.  Parker,  28  Me.  509 ;  Manning  v.  Laboree,  33  Me.  343. 


292  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

tion  of  the  old  mill  afforded  a  proper  case  for  compensation 
to  the  widow  by  a  court  of  equity.^ 

23.  In  respect  to  the  time  when  and  manner  in  which  the 

tenant  is  to  suggest  that  improvements  have  been 
[*242]  made  in  the  *  premises,  in  order  to  have  a  proper 

judgment  rendered  in  any  case,  the  law  does  not  seem 
to  be  uniform.  It  should  be  done  by  some  proper  plea  or 
suggestion  upon  the  record,  and  not  by  the  wa}^  of  controvert- 
ing the  right  of  the  demandant  to  recover  her  dower.^  And 
where  the  tenant,  by  his  plea,  denied  the  marriage  and  seisin 
of  the  husband,  the  court  say,  "  We  cannot,  from  these  plead- 
ings, understand  that  any  improvements  have  been  made 
since  then  (the  alienation),  or  of  what  nature  or  value,  to  be 
excluded  from  the  judgment  to  be  rendered."  ^  In  New  York, 
the  court  sa}^  the  value  may  be  ascertained  in  one  of  three 
ways :  either  by  a  jury  upon  the  trial  of  the  issue,  or  by  the 
sheriff  on  the  writ  of  seisin,  or  by  a  writ  of  inquiry  founded 
upon  proper  suggestions.*  It  is  suggested  in  a  work  on  Real 
Actions,  of  high  authority,  that  a  convenient  mode  of  doing 
this  would  be  by  having  the  increased  value  found  by  the 
jury  at  the  bar  of  the  court,  as  is  done  in  actions  to  recover 
lands  where  the  tenant  claims  allowance  for  improvements." 

24.  It  sometimes  happens  that  the  assignment  of  dower 
proves  to  be  inoperative,  by  the  widow's  being  evicted  from 
the  land  assigned  to  her,  by  a  better  title.  In  such  case,  her 
right  to, any  redress  by  the  way  of  a  new  assignment  depends 
upon  whether  the  dower  is  of  common  right  or  against  com- 
mon right.  In  the  one  case  she  may  have  her  dower  assigned 
de  novo  out  of  the  balance  of  the  estate  ;  in  the  other,  she 
may  not.  Where  she  has  accepted  dower  which  has  been 
assigned  against  common  right,  she  has  no  remedy  if  it  fails.^ 
She  could  not,  under  either  mode  of  assignment,  avail  her- 
self, for  relief,  of  the  covenant  of  warranty  made  to  her  hus- 

1  Beavers  v.  Smith,  11  Ala.  20  ;  Sturtevant  v.  Phelps,  16  Gray,  50. 

2  Stearns,  Real  Act.  317;  Coxe  v.  Higbee,  6  Halst.  395. 

s  Ayer  v.  Spring,  10  Mass.  80.  *  Dolf  i'.  Basset,  15  Johns.  21. 

6  Stearns,  Real  Act.  317  ;  Gen.  Stat.  c.  184,  §§  20,  21. 

6  Jones  V.  Brewer,  1  Pick.  314;  Scott  y.  Hancock,  13  Mass.  162;  Hollomanv. 
Holloman,  5  S.  &  M.  559;  Mantz  v.  Buchanan,  1  Md.  Ch.  Dec.  202;  French  v. 
Pratt,  27  Me.  381 ;  Tud.  Gas.  52;  Perkins,  §  418. 


CH.  VII.  §  6.j  DOWER.  293 

band,  since  she  is  not  the  assignee  of  the  whole  estate  in  the 
lauds  set  out  to  her  as  dower. ^  If  her  dower  was  at 
first  set  off  u]3on  a  *  judgment  of  court,  her  remedy,  in  [*243] 
case  she  is  deprived  of  any  part  of  her  dower  land, 
would  be  by  scire  facias,  whereupon  a  new  writ  of  Jiahere 
facias  would  issue,  which  is  to  be  served  and  returned  like  the 
first.2  Nor  is  this  remedy  of  an  assignment  de  novo  confined 
to  a  claim  in  favor  of  the  widow  alone.  It  may  be  applied,  in 
some  cases,  to  reduce  the  dower  set  out  to  her.  Thus,  where 
there  was  an  action  pending  against  the  husband  for  the  re- 
covery of  a  pretty  large  proportion  of  his  estate,  at  the  time 
of  his  death,  and  dower  was  assigned  to  his  wddow  out  of  the 
entire  estate,  and  afterwards  the  demandant  prevailed  in  his 
action  and  recovered  a  large  part  of  the  estate  of  which  hus- 
band died  seised,  not  set  out  to  her,  it  was  held  that  a  new 
assignment  should  be  made,  having  reference  to  the  estate 
belonging  in  fact  to  the  husband.^ 

25.  A  widow's  remedy  in  equity  for  the  recovery  of  dower, 
is,  in  some  respects,  broader  than  at  law.  It  embraces  a  large 
class  of  cases  for  which  the  common  law  furnishes  no  adequate 
remedy.  Among  these,  are  all  cases  of  trust  estates  and 
equities  of  redemption,  and  also  many  cases  where,  by  sale  or 
otherwise,  the  land  has  been  converted  into  money,  without 
extinguishing  the  widow's  right  in  equity  to  share  in  the 
proceeds.  A  resort  to  equity  is  alwaj-s  a  convenient  and  de- 
sirable mode,  where  it  is  necessary  to  call  upon  the  tenant  to 
disclose  his  title,  or  state  an  account  of  mesne  profits,  and  the 
like ;  *  though  in  all  cases  where  the  widow's  right  of  dower 
is  controverted  in  proceedings  in  equity,  the  court  sends  the 
case  to  a  court  of  common-law  jurisdiction  to  have  the  ques- 
tion determined  by  a  jury.^  And  in  Vermont,  if  demandant 
first  goes  into  chancery  for  her  dower,  in  order  to  clear  off 
mortgages  and  the  like,  the  court  in  the  end,  in  order  to  the 
final  assignment  of  the  dower,  remit  the  proceedings  to  the 

1  St.  Clair  v.  Williams,  7  Ohio,  2d  Pt.  110. 

2  Stearns,  Real  Act.  321 ;  2  Crabb,  Real  Prop.  151. 

3  Singleton  v.  Singleton,  5  Dana,  87. 

*  2  Crabb,  Real  Prop.  189;  Svvaine  v.  Perine,  5  Johns.  Ch.  482. 
6  Park,  Dow.  329;  Swaine  v.  Perine,  6  Johns.  Ch.  482  ;  Sellman  v.  Bowen,  8 
Gill  &  J.  50 


294  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

probate  court,  which  goes  on  and  completes  the  process.^ 
Among  the  cases  where  the  only  remedy  for  the  re- 
[*2-44]  covery  of  dower  is  *  through  a  court  of  chancery, 
are  those  where  it  is  claimed  out  of  an  equity  of  re- 
demption, and  the  claim  is  against  the  mortgagee  or  his 
assigns,  even  though  the  mortgagee  may  have  purchased  the 
husband's  equity  of  redemption.^  And  the  same  rule  applies 
where  a  party  interested  has  redeemed  the  mortgage,  and  the 
wndow  of  the  mortgagor  demands  dower  against  him.^  So 
chancery  has  exclusive  jurisdiction  where  the  estate  out  of 
which  dower  is  claimed  was  held  in  trust,  actually  or  con- 
structively, for  the  benefit  of  the  husband.  These  points  may 
be  better  illustrated  by  referring  to  a  few  decided  cases  than 
by  any  statement  of  a  general  proposition.  Thus,  in  Smiley 
V.  \Yright,  and  also  in  Taylor  v.  McCrackin,*  the  estate  had 
been  bargained  for,  and  a  greater  or  smaller  proportion  of  the 
purchase-money  paid  by  the  husband,  but  no  deed  had  been 
made,  and  the  widow  sought  to  share  in  the  benefit  of  the 
purchase.  Where  an  estate  was  devised,  charged  with  the 
payment  of  a  sum  of  money,  and  the  widow  of  the  devisee 
sought  to  have  her  dower  set  out  in  the  premises,  it  was  held 
that  it  could  only  be  done  by  her  contributing,  or  offering  to 
contribute,  her  just  proportion  of  her  charge  upon  the  land.^ 
Where  the  wife  joined  in  a  mortgage  containing  a  power  of 
sale,  and  there  was  reserved  to  the  mortgagor  whatever  sur- 
plus, in  the  event  of  a  sale,  there  might  be  after  satisfying  the 
mortgage  debt,  his  widow  was  held  entitled  to  her  dower  out 
of  such  surplus,  and  a  court  of  equity  secured  the  same  to 
her,  by  causing  one  third  part  of  it  to  be  invested  for  that 

1  Danforth  v.  Smith,  23  Vt.  247. 

-  Bird  V.  Gardner,  10  Mass.  .366;  Gibson  v.  Crehore,  3  Pick.  475;  Swaine  v. 
Ferine,  5  Johns.  Cli.  482;  Vandyne  v.  Thayre,  19  Wend.  162;  Heth  v.  Cocke,  1 
Hand.  314;  Wooldridge  v.  Wilkins,  3  How.  (Miss.)  360;  Smith  v.  Eustis,  7 
Greenl.  41 ;  Thompson  v.  Boyd,  2  N.  J.  543  ;  Brown  v.  Lapliam,  3  Gush.  551 ; 
Woods  V.  Wallace,  10  Fost.  (N.  H.)  384;  Wing  v.  Ayer,  53  Me.  138;  McArthur 
V.  Franklin,  16  Ohio  St.  205. 

3  Cass  V.  Martin,  6  N.  H.  25 ;  Gibson  v.  Crehore,  5  Pick.  146 ;  Hastings  v. 
Stevens,  9  Fost.  (N.  H.)  564. 

*  Smiley  v.  Wright,  2  Ohio  St.  511 ;  Taylor  v.  McCrackin,  2  Blackf.  260. 

6  Clough  V.  Elliott,  3  Fost.  (N.  H.)  182;  post,  pi.  27. 


CH.  VII.  §  5.]  DOWER.  295 

purpose.^  So  where  the  husband  died  seised  of  hind  for  which  a 
part  of  the  purchase-money  was  due,  and  the  estate  was 
sold  1)}'  the  administrator  by  order  of  court,  and  *  the  [*245] 
purchase-mone}''  paid  out  of  it,  leaving  a  surplus, 
the  court  held  the  wife  entitled  to  her  dower  out  of  such  sur- 
plus.^  In  the  above  case  of  Denton  v.  Nanny,  the  court  of 
New  York  held  that  the  right  of  wife  in  a  mortgaged  estate 
would  not  be  barred  by  proceedings  against  her  husband  to 
which  she  was  not  a  party,  and  that,  in  such  case,  the  court 
would  have  one  third  of  the  surplus  proceeds  of  the  sale  of 
the  estate,  after  paying  the  mortgage,  set  apart  and  invested 
on  interest  for  the  joint  lives  of  her  and  her  husband,  and  for 
her  life,  if  surviving  him,  as  her  dower  right.^  So  where,  as 
in  New  York,  the  surrogate  has  power  when  the  husband  dies 
indebted,  to  cause  the  estate  to  be  sold,  discharged  of  the 
widow's  claim  for  dower,  the  court  will  cause  one  third  part 
of  the  purchase-money  to  be  put  at  interest,  for  her  benefit, 
as  dower.**  And  it  may  be  laid  down  as  an  almost  universal 
proposition,  that  where  estates  out  of  which  widows  were 
entitled  to  dower  have  been  sold  by  order  of  court,  or  have 
been  so  sold  as  to  give  courts  of  equity  jurisdiction  over  the 
money,  these  courts  will  allow  the  widow's  dower  out  of  the 
moneys.^  In  Jennison  v.  Hapgood,*^  the  executor  of  a  will 
sold  his  testator's  mortgaged  estate,  and  purchased  it  himself, 
paying  the  mortgage,  in  part,  out  of  the  assets  in  his  hands, 
and,  in  part,  out  of  his  own  funds ;  and  the  widow,  as  she 
chose  to  affirm  the  sale,  was  held  entitled  to  dower,  of  one 
third  part  of  what  the  estate  sold  for,  and  one  third  part  of 
what  was  paid  towards  the  mortgage  out  of  the  assets  of  the 
estate.     In  Church  v.  Church,'  shares  of  tenants  in  common 

1  Denton  v.  Nanny,  8  Barb.  G18.  -  Denton  v.  Nanny,  8  Baib.  616. 

"*  Brewer  v.  Vanarsdale,  6  Dana,  204 ;  Mills  v.  Van  Voorhis,  23  Barb.  125, 
136. 

*  Lawrence  v.  Miller,  1  Sandf.  516;  s.  c.  2  Comst.  245;  Higbie  v.  Westlake, 
4  Kern.  281. 

5  Jennison  v.  Hapgood,  14  Pick.  .345;  Titus  v.  Neilson,  5  Johns.  Ch.  452; 
Church  V.  Church,  3  Sandf.  Ch.  434;  Willet  v.  Beatty,  12  B.  Mon.  172  ;  Mills  v. 
Van  Voorhis,  sup. 

6  .Jennison  i'.  Hapgood,  14  Pick.  345. 

7  Church  V.  Church,  3  Sandf.  Ch.  434 ;  Warren  v.  Twilley,  10  Md.  39 ;  Weaver 
i;.  Gregg,  6  Ohio  St.  552. 


296  LAW   OF   EEAL   PROPERTY.  [BOOK   I. 

were  sold  by  order  of  court  to  effect  partition,  and  the  widow 
of  one  of  the  tenants  was  held  entitled  to  dower  out  of  the 
proceeds  of  the  sale.  And  the  cases  are  numerous  where 
mortsfasres  in  which  the  wife  has  ioined  have  been  foreclosed, 

after  the  death  of  the  husband,  by  sale,  in  which  the 
[*246]   widow  has  shared  *  as  dower  in  the  proceeds  of  the 

surplus  after  satisfying  the  mortgage.^  So  where  the 
vendor,  holding  a  lien  for  purchase-money,  enforces  it  after 
the  husband's  death  by  a  sale  under  decree  of  chancery,  the 
vendee's  widow  is  entitled  to  dower  in  the  surplus  after  satis- 
fying the  lien.2  And  where  several  tenants  in  common,  with 
their  wives,  conveyed  the  estate  to  trustees  to  sell,  one  of  the 
grantors  having  died,  his  widow  was  held  entitled  to  one  third 
of  the  income  of  the  money  for  which  his  share  sold,  as  her 
dower.3  Without  multiplying  illustrations  fi'om  decided 
cases,  a  leading  Massachusetts  case  will  serve  the  purpose 
upon  several  of  the  points  above  stated.*  The  demandant 
joined  with  her  husband  in  a  mortgage  to  one  B.  The  hus- 
band died  insolvent,  and  his  administrators  sold  his  equity  of 
redemption  for  the  payment  of  debts,  to  Crehore,  the  defend- 
ant, who  gave  his  bond  conditioned  to  pay  the  debt  due  B. 
Subsequently  B.  assigned  his  mortgage  to  the  defendant,  who 
soon  after  mortgaged  the  premises  to  J.  P.,  but  had  entered 
upon  and  rented  them  and  received  rent  for  the  same.  The 
plaintiff,  without  demanding  dower  of  B.  or  defendant,  and 
without  having  had  dower  set  off  to  her,  brought  assumpsit 
against  the  defendant  for  a  share  of  the  rents.  The  court 
held  that  the  action  would  not  lie,  her  only  remedy  being  in 
equity  against  the  mortgagee  or  his  assigns,  and  that  she  could 
only  avail  herself  of  her  right  by  paying  her  proportion  of  the 
mortgage  debt.  They  held  further,  that  the  purchasing  in  of 
the  mortgage  by  the  defendant  was  not  a  payment  and  extin- 
guishment of  it  as  to  the  widow  who  had  signed  the  deed. 
The  widow,  thereupon,  brought  her  bill  in  equity,  offering  to 

1  Smith  V.  Jackson,  2  Edw.  Ch.  28  ;  Keith  v.  Trapier,  1  Bailey,  Eq.  63 ;  Haw- 
ley  V.  Bradford,  9  Paige,  Ch.  200 ;  Hartshorne  i;.  Hartshorne,  1  Green,  Cli.  349. 

2  Williams  v.  Woods,  1  Humph.  408 ;    McClure  v.  Harris,  12  B.  Men.  261 ; 
Willet  V.  Beatty,  12  B.  Mon.  172. 

3  Hawley  v.  James,  5  Paige,  Ch.  318.  *  Gibson  v.  Crehore,  3  Pick.  475. 


CH.  VII.  §  5.]  DOWER.  297 

redeem  the  mortgage,  and  claiming  to  be  admitted  to  dower 
in  the  premises.^  It  was  held  by  the  court  that  she  might 
maintain  the  bill  before  her  dower  had  been  assigned 
to  *her,  though  she  could  not  have  maintained  a  [*247] 
"writ  of  entry  before  such  assignment,  for  her  legal 
right  was  inchoate  until  assignment  made.  Before  she  re- 
deems the  mortgage,  she  has  no  right  to  demand  an  assign- 
ment of  dower  as  against  the  mortgagee.  Nor  is  it  necessary 
to  have  dower  previously  assigned  by  the  heirs,  for  she  can- 
not redeem  a  part  of  the  mortgaged  premises,  without 
redeeming  the  residue  also,  if  required  by  the  mortgagee.^ 
It  was  accordingly  held  that  she  could  have  dower,  but 
must,  to  that  end,  redeem  the  mortgage.  And  as  the  mort- 
gagee was  not  obliged  to  accept  his  debt  in  parcels,  but 
might  insist  upon  its  being  paid  in  an  entire  sum,  and  the 
widow  was  obliged  to  do  this  to  save  her  estate,  she  thereby 
became  an  equitable  assignee  of  the  mortgage,  with  a  right 
to  hold  the  estate  under  it  until  the  owner  of  the  equity  of 
redemption  came  in  and  contributed,  pro  rata,  his  share  of  the 
mortgage  debt,  she  keeping  down  in  effect  one  third  part  of  the 
interest  of  the  mortgage  debt  during  her  life.  But  where 
the  mortgage  had  been  foreclosed,  except  as  to  the  widow,  or 
the  mortgagee  had  acquired  the  equity  of  redemption,  the 
court,  instead  of  requiring  the  widow,  before  claiming  dower, 
to  redeem  the  mortgage  from  the  tenant,  as  mortgagee,  and 
then  requiring  him,  as  holder  of  the  equity,  to  contribute  to 
redeem,  permitted,  in  order  to  avoid  this  circuity  of  action, 
the  widow  to  have  dower  assigned  to  her,  contributing  her 
proportion  of  the  mortgage  debt,  or,  as  held  in  a  similar  case 
in  New  Hampshire,  paying  the  same  into  court  for  the  use  of 
the  holder  of  the  mortgage.-^ 

By  a  statute  in  Massachusetts,^  the  widow  may  have  an 
action  of  dower  against  the  heir  or  other  person  claiming 
under  the  husband,  who  shall  have  redeemed  the  mortgage 
upon  the  estate,  and  instead  of  requiring  her  to  contribute 

1  Gibson  v.  Crehore,  5  Pick.  146. 

'i  Cass  V.  Martin,  6  N.  H.  25 ;  Wing  v.  Ayer,  5.3  Me.  142. 

3  Van  Vronker  ;;.  Eastman,  7  Met.  157  ;  Bell  v.  Mayor  of  New  York,  10  Paige, 
Ch.  70;  Wood  v.  Wallace,  10  P^ost.  (N.  H.)  384. 

4  Gen.  Stat.  Mass.  c.  90,  §  2. 


298  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

toward  the  pa3'ment  of  the  debt,  the  commissioners  ma}""  esti- 
mate tlie  entire  worth  or  value  of  sucli  annuity  by  mathe- 
matical rules.^     Bat  where  a  wife  joined  in  a  mortgage,  and 
the  husband's  equity  of  redemption  was  afterwards  sold  on 
execution,  and  came  by  mesne  conveyance  to  the  holder  of 
the  mortgage,  it  was  held  that  the  only  remedy  fur  the  wife, 
for  her  dower,  in  such  case,  was  in  equity .^     And  where  a 
tenant  in  common  joined  with  his  co-tenant  in  executing  a 
mortgage  of  the  common  estate,  and  then  married,  and  then 
conveyed  his  interest  in  the  estate  to  his  co-tenant,  who  dis- 
charged the  mortgage,  it  was  held  that  the  w4fe  of  the  first- 
mentioned  tenant  might  claim  her  dower  in  the  half  of  the 
estate,  after  deducting  the  amount  of  the  mortgage  from  the 
value  thereof.^    And  the  same  rule  applies  in  all  cases 
[*248]  *  where  the  owner  of  the  life-estate  and  the  remainder- 
man are  required  to  contribute  their  respective  propor- 
tions of  the  mortgage  debt.*    The  duration  of  the  widow's  life, 
upon  which  such  calculation  is  to  be  made,  must,  of  necessity, 
be  problematical.     But  courts  are  in  the  habit  of  adopting 
computations  as  to  the  probable  duration  of  life,  which  are 
contained  in  tables  calculated  upon  a  great  number  of  lives, 
and  supposed  to  approximate  the  true  average  of  life  at  its 
various  periods.    In  Massachusetts,  the  tables  of  Dr.  Wiggles- 
worth  are  generally  in  use.°     But  those  known  as  the  Car- 
lisle Tables  are  elsewhere  in   use  in   this   country  for  such 
purposes,  except  in  Maryland,  where  Dr.  Halley's  tables  are 
adopted.'^     In  applying  these  tables  to  particular  cases,  refer- 
ence is  had  to  the  health  as  well  as  the  age  of  the  person. 
In  some  cases  the  mortgagee  may  have  been  in  receipt  of  the 
rents  of  the  estate  where  the  widow  may  seek  by  redemption 
to  have  her  dower  in  the  estate,  and  rules  are  adopted  in  such 
cases  for  ascertaining  the  balance  that  may  be  due.     But  it 

1  Bell  V.  Mayor  of  New  York,  10  Paige,  c.  7L 

2  Farwell  v.  Getting,  8  Allen,  •21L 

3  Pynchon  v.  Lester,  6  Gray,  314.     See  Newton  v.  Gook,  4  Gray,  46 ;  Snyder 
V.  Snyder,  6  Mich.  470. 

*  Swaine  v.  Perine,  5  Johns.  Gh.  482 ;  Gibson  v.  Grehore,  5  Pick.  146. 

5  Estabrook  v.  Hapgood,  10  Mass.  315,  n. 

6  Abercrombie  v.  Riddle,  3  Md.  Ch.  Dec.  320 ;  Dorsey  v.  Smith,  7  Har.  &  J. 
367. 


CH.  VII.  §  5.]  DOWER.  299 

would  be  entering  too  much  in  detail  to  do  anything  more 
than  to  refer  to  them  here.^ 

26.  A  similar  rule  is  applied  in  estimating  the  relative  value 
of  a  widow's  dower  to  that  of  the  whole  estate,  as  in  ascer- 
taining the  share  of  any  charge  or  burden  upon  an  estate 
which  she  must  bear  as  dowress.  And  this  is  especially  ap- 
plicable where  she  is  to  be  endowed  out  of  moneys,  the  pro- 
ceeds of  the  sale  of  real  estate,  from  which  is  to  be  deducted 
what  the  tenant  may  have  paid  to  redeem  the  mortgage,  assign- 
ing the  widow  her  dower  according  to  the  value  of  the  resi- 
due.^ If  the  husband  be  the  grantee  of  a  part  of  the  mortgaged 
premises,  and  his  widow  seeks  to  recover  dower  in  the  same, 
she  will  m  the  end  be  obliged  to  contribute  or  allow  such 
part  of  the  mortgage  debt  as  her  interest  in  her  husband's 
portion  of  the  estate  bears  in  value  to  the  whole  es- 
tate.^ Where  the  widow  pursues  *her  remedy  in  [*249] 
equity  for  the  recovery  of  dower,  it  seems  that  the 
setting  out  of  the  dower,  as  well  as  the  ascertaining  the  amount 
she  shall  contribute,  may  be  done  by  a  master  or  by  commis- 
sioners, in  the  discretion  of  the  court.*  If,  however,  she  shall 
have  had  her  dower  set  out  at  common  law,  without  reference 
to  the  mortgage,  she  may  have  her  bill  to  redeem,  and  as  be- 
tween her  and  her  reversioner  and  the  owner  of  the  other 
two  thirds  of  the  estate,  she  must  contribute,  pro  rata^  accord- 
ing to  the  relative  values  of  their  respective  interests.^ 

27.  In  determining  the  amount  which  a  dowress  shall  con- 
tribute toward  the  mortgage  debt  as  forming  her  "pro  rata 
portion  thereof,  the  rule  is  to  require  her  to  pay  what  will  be 
equivalent  to  one  third  of  the  annual  interest  during  her  life.^ 
But  this  must  be  paid  in  a  gross  sum,  and  not  in  the  way  of 
an  annual  payment,  unless  the  mortgagee  elects  not  to  enforce 
the  payment  of  the  principal  sum,  in  which  case  she  must 

1  Van  Vronker  v.  Eastman,  7  Met.  157  ;  Tucker  v.  Buffura,  16  Pick.  46. 

2  Gen.  Stat.  c.  90,  §  2 ;  Newton  v.  Cook,  4  Gray,  46. 

3  Carll  y.  Butman,  7  Greenl.  102. 

*  Swaine  v.  Ferine,  5  Johns.  Ch.  482.  See  also  Van  Vronker  v.  Eastman,  7 
Met.  157,  and  Wood  v.  Wallace,  lOFost.  (N.  H.)  384. 

6  Danforth  v.  Smith,  23  Vt.  247. 

e  Swaine  v.  Ferine,  5  Johns.  Ch.  482 ;  McArthur  i;.  Fraukhn,  16  Ohio  St. 
205  :  ante,  pi.  25. 


300  LAW   OF   REAL   PROPERTY.  [BOOK  I. 

contribute  to  keep  down  one  third  of  the  interest.^  This 
gross  sum  is  calculated  by  considering  this  interest  as  an 
annuity,  to  continue  as  long  as,  by  the  chances  of  life,  she 
is  to  live,  and  computing  its  present  worth. 

So,  on  the  other  hand,  where  money  is  assigned  in  lieu  of 
dower,  the  widow  receives,  in  most  of  the  States,  a  gross  sum 
instead  of  an  annuity,  or  a  share  of  the  annual  income.  In 
others  it  is  held  that  such  a  composition  cannot  be  made  by 
order  of  the  court  except  by  agreement  of  the  parties.  In 
South  Carolina,  the  courts  adopt  as  an  arbitrary  rule  the 
principle,  that  a  widow's  estate  for  life  in  one  third  is  equal 
to  one  sixth  of  the  entire  fee  in  the  whole  estate.^  In  Ala- 
bama, Tennessee,  and  in  the  United  States  courts,  it  is  not 
held  competent  to  assign  to  a  widow  a  gross  sum.     It  can 

only  be  decreed  that  the  annual  value  of  the  dower 
[*250]  be  paid  her  annually.^   But  *  in  Maryland,  Kentucky, 

and  Maine,  cases  have  arisen  where  the  courts  have 
decreed  her  a  sum  in  gross  in  such  cases,  calculated  upon  her 
chances  of  life.^  And  the  same  rule  is  adopted  in  Massachu- 
setts. But  in  New  York,  the  court,  without  going  into  the 
reasons  for  so  doing,  directed  the  fund,  out  of  which  her 
dower  was  to  come,  to  be  invested  and  the  income  paid  over 
to  her  during  life.^ 

1  Bell  V.  New  York,  10  Paige,  Ch.  70 ;  Wing  v.  Ayer,  53  Me.  138. 

2  Wright  V.  Jennings,  1  Bailey,  277  ;  Garland  v.  Crow,  2  Bailey,  21.  Ante,  p 
*89,  note. 

3  Johnson  v.  Elliott,  12  Ala.  112;  Beavers  v.  Smith,  11  Ala.  20;  Francis  v 
Garrard,  18  Ala.  794;  Lewis  v.  James,  8  Humph.  537;  Herbert  v.  Wren,  7 
Cranch,  370. 

*  Goodburn  v.  Stevens,  1  Md.  Ch.  Dec.  441 ;  Brewer  v.  Vanarsdale,  6  Dana 
204;  Simonton  v.  Gray,  33  Me.  50;  Carll  v.  Butman,  7  Greenl.  102;  Jennisonw 
Hapgood,  14  Pick.  345. 

5  Titus  V.  Neilson,  5  Johns.  Ch.  452.  As  has  more  than  once  been  stated,  in 
most,  if  not  all  the  vStates,  the  courts  of  probate  jurisdiction  have  cognizance  of 
matters  of  dower  so  far  as  to  issue  process  for  setting  it  off  in  the  estates  of  de- 
ceased persons,  where  the  principal  estate  shall  have  been  the  subject  of  settle- 
ment in  such  court.  But  the  details  of  the  law  on  this  subject  do  not  seem  to 
come  within  the  purposes  of  the  present  work. 


CH.  VII.  §  6.]  DOWER.  301 

SECTION  VI. 

NATURE    OF   THE    ESTATE   IN  DOWER. 

1.  Interest  of  wife  —  in  dower. 

2.  Interest  of  widow  before  assignment. 

3.  Estate  of  dowress  after  assignment. 

4.  Tenure  of  dowress  as  to  fealty. 

5.  Incidents  to  dower. 

1.  The  nature  of  the  interest  which,  inchoate  in  the  wife, 
becomes  consummate  in  the  widow,  in  the  way  of  dower, 
deserves  a  distinct  notice,  since,  in  many  respects,  it  is  unlike 
any  other  known  to  the  law.^  At  common  law,  the  moment 
her  coverture  and  her  husband's  seisin  concur,  she  acquires  a 
right  which  nothing  but  her  death  or  her  voluntary  act  can 
defeat,  unless  it  be  by  an  exercise  of  sovereignty  by  the  forms 
of  the  law  in  appropriating  the  estate  of  the  husband  to  a  public 
use.  No  adverse  possession,  therefore,  as  against  her  hus- 
band, however  long  continued,  can  affect  her  right  to  recover 
dower  after  his  decease.^  It  is  no  right  which  her  husband 
can  bar  or  incumber ;  nor  she  herself,  except  by  deed  in 
which  her  husband  joins,  and  then  it  is  only  in  the  way  of 
estoppel,  for  her  deed  even  of  grant  does  not  pass  any  title 
to  the  estate.^  She  has  not,  in  this  stage  of  her  right,  even  a 
chose  in  action  in  respect  to  the  estate ;  nor  can  she  protect 
it  in  any  way  from  waste  or  deterioration  by  her  hus- 
band or  his  alienee ;  nor  is  her  right,  in  any  sense,  *  an  [*251] 
interest  in  real  estate,  nor  property  of  which  value 

can  be  predicated.*     She  cannot  convey  it,  nor  is  it  a  thing 
to  be  assigned  by  her  during  the  life  of  the  husband.^ 

2.  But  immediately  upon  the  death  of  her  husband,  her 
right  becomes  consummate  and  perfect :  and  if  the  heir  then 
waste  or  deteriorate  the  estate,  she  may  have  a  remedy  for  the 
loss  thereby  occasioned  to  her.     But  as  her  right  is  still  a  mere 

1  Park,  Dow.  334. 

2  Durham  v.  Angier,  20  Me.  242 ;  Moore  v.  Frost,  3  N.  H.  127. 

3  Learned  v.  Cutler,  18  Pick.  9. 

4  Moore  v.  New  York,  4  Seld.  110 ;  McArthur  v.  Franklin,  16  Ohio  St.  200. 

5  Gunnison  v.  Twitchell,  38  N.  H.  68. 


302  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

chose  in  action^  she  has  nothing  of  which  estate  can,  at  this 
stage  of  her  interest,  be  predicated.^  She  is  not  seised  of  any 
part  of  the  lands,  on  the  death  of  her  husband,  \)j  any  right 
of  dower,  until  it  is  assigned  to  her.^  In  Vermont,  however, 
she  becomes  entitled  to  possession  and  enjoyment  of  the  estate, 
in  common  with  the  heirs  of  her  husband,  of  an  undivided 
third  part,  which  she  may  continue  to  hold  during  her  life 
without  a  previous  formal  assignment  of  dower.^  So  in  Con- 
necticut, before  her  dower  has  been  assigned  to  her,  she  lias 
the  rights  of  a  tenant  in  common  with  the  heirs  at  law  of  the 
husband.*  But  a  surrender  by  deed,  with  covenants  of  war- 
ranty, by  her,  would  estop  her  from  claimhig  dower  in  the 
premises.^  She  has  no  estate  in  the  lands,  nor  anything  which 
she  can  assign  or  convey  to  another,  or  which  can  be  taken  in 
execution  for  her  debt ;  ^  though  in  Alabama,  an  assignment 
by  a  widow  of  her  right  in  lands  in  which  her  husband  died 
seised,  was  held  to  be  valid.^  And  in  Indiana  she  was  held 
to  have  such  an  interest  as  she  could  assign  in  lands  of  which 
her  husband  had  been  seised  during  coverture,  although  he 
had  conveyed  the  same  in  his  lifetime.^  But  her  right  is  not 
one  against  which  a  statute  of  limitation  runs  in  favor  of  a 
tenant  as  being  adversely  seised,  unless  expressly  embraced 
in  such  statute  ;  ^  nor  is  it  such  an  interest  as  to  be  affected 
by  any  proceedings  for  foreclosure  by  a  mortgagee  against  her 
husband,  unless  she  is  made  a  party  by  proper  notice.  Thus, 
where  the  husband  bought  an  equity  of  redemption,  and  after- 
wards sold  it  to  the  mortgagee,  who,  in  order  to  perfect  his 


1  4  Kent,  Com.  61;  Green  t'.  Putnam,  1  Barb.  500;  Stewart  v.  McMartin,  5 
Barb.  438 ;  Johnson  v.  Sliields,  32  Me  424  ;  Cox  v.  Jagger,  2  Cow.  651  ;  Shield 
V.  Batts,  5  J.  J.  Marsh.  12  ;  Hoxsie  v.  Ellis,  4  R.  L  123;  Saltmarsh  v.  Smith,  32 
Ala.  404  ;  Stewart  v.  Chadwick,  8  Iowa,  468. 

2  Sheafe  v.  O'Neil,  9  Mass.  9 ;  Weaver  v.  Crenshaw,  6  Ala.  873. 

3  Duramerston  v.  Newfane,  37  Vt.  13.     See  Mass.  Gen.  Stat.  c.  90,  §  7. 
*  Wooster  v.  Hunt's  Lyman  Iron  Co.,  38  Conn.  257. 

5  McCroskin  v.  Wriglit,  14  Johns.  194. 

6  Brown  o.  Meredith,  2  Keen,  527  ;  Green  v.  Putnam,  1  Barb.  500;  Gooch  «;. 
Atkins,  14  Mass.  378  ;  Saltmarsh  v.  Smith,  32  Ala.  404. 

7  Powell  V.  Powell,  10  Ala.  900;  Matloch  v.  Lee,  9  Ind.  298. 

8  Strong  V.  Clem.  12  Ind.  37. 

9  4  Kent,  Com.  70 ;  Parker  v.  Obear,  7  Met.  24  ;  Spencer  >•.  Weston,  1  Dev.  & 
Bat.  213;  Guthrie  v.  Owen,  10  Yerg.  339;  Barnard  v.  Edwards,  4  N.  H.  107. 


CH.  VII.  §  6.]  DOWER.  303 

title,  gave  notice  to  the  husband  that  he  held  for  foreclosure, 
as  the  law  stood  before  the  Revised  Statutes  in  Massachusetts, 
it  was  held  that  the  wife  was  not  affected  by  such  proceedings. 
In  order  to  be  effectual  as  to  her,  she  must  be  notified  after 
her  husband's  death,  and  the  mortgagee  must  hold  for  the 
requisite  time  afterwards.^  The  principle  above  stated,  that 
until  assignment  made,  dower  is  not  the  subject  of 
sale  or  conveyance  *so  as  to  vest  a  legal  title  in  the  [*252] 
assignee  or  alienee,  and  enable  him  to  sue  for  it  in  his 
own  name,  is  recognized  in  courts  of  equity  as  well  as  law.^ 
Tn  Indiana,  an  assignee  of  a  widow's  right  of  dower  may 
recover  the  same  in  his  own  name.^  But  where  such  sale  or 
assignment  is  made,  equity  will  protect  the  rights  of  the  as- 
signee and  sustain  an  action  in  the  widow's  name  for  his  ben- 
efit.'* And  if  she  sells  her  right  and  gives  the  purchaser  a 
power  of  attorney  for  the  purpose,  he  may  prosecute  an  action 
and  recover  dower  in  her  name  in  her  stead. ^  And  where  a 
widow  sold  her  right  of  dower  to  one  of  the  heirs  of  her  hus- 
band, who  brought  a  bill  in  equity  against  the  heirs  and  him- 
self, to  have  her  dower  set  out  to  him,  the  court  decreed  the 
same  to  be  done.^  But  under  her  rights  at  law,  that  of  dower 
prior  to  assignment  vests  in  action  only,  and  cannot  be 
aliened.  The  most  she  can  do  is  to  release  it  to  some  one 
who  is  in  possession  of  the  lands,  or  to  whom  she  stands  in 
privity  of  estate  ;  she  cannot  invest  another  with  it.'  She 
cannot,  therefore,  mortgage  it  before  it  is  assigned,  nor  lease 
it ;  and  a  covenant  to  pay  rent  to  her  does  not  bind  the  assignee 
of  the  covenantor.^  Of  so  little  effect  is  the  conveyance  of  a 
widow's  mere  right  of  dower  that  where  the  first  of  two  suc- 
cessive widows  entitled  to  dower  out  of  the  same  estate,  con- 
veyed to  the  tenant  her  right  before  the  dower  was  assigned, 

1  Lund  V.  Woods,  11  Met.  506. 

2  Tompkins  v.  Fonda,  4  Paige,  Ch.  448;  Torreyi;.  Minor,  1  S.  &  M.  Ch.  489; 
Harrison  v.  Wood,  1  Dev.  &  Bat.  Eq.  437. 

8  Strong  c.  Clem,  12  Ind.  37. 

4  Lamar  v.  Scott,  4  Rich.  516  ;  Powell  v.  Powell,  10  Ala.  900. 

5  Robie  V.  Flanders,  33  N.  H.  524.  6  Potter  v.  Everitt,  7  Ired.  Eq.  152. 

7  Blain  v.  Harrison,  11  111.  384;  Summers  v.  Babb,  13  111.  483;  Jackson  u. 
Vanderlicyden,  17  Jolms.  167  ;  Johnson  v.  Shields,  32  Me.  424  ;  Park,  Dow.  335. 

8  Strong  I'.  Bragg,  7  Blackf.  62 ;  Croade  v.  Ingraham,  13  Pick.  33. 


304  LAW  OF  REAL  PROPERTY.  [bOOK  I 

it  was  held  to  be  an  extinguishment  of  her  right,  so  that  when 
the  second  came  to  claim  her  dower,  the  tenant  could  not 
make  use  of  the  conveyance  to  affect  her  claim  to  be  endowed 
out  of  the  whole  estate.^  And  where  a  man  married  a  widow, 
whose  dower  in  her  first  husband's  estate  had  not  been  set  out, 
and  assigned  all  his  estate  and  effects  of  which  he  was  pos- 
sessed in  right  of  his  wife  or  otherwise,  it  was  held  not  to 

carry  any  right  which  she  had  to  have  her  dower 
[*253]  assigned.^     On  the  *  other  hand,  where  a  mortgagee 

undertook  to  foreclose  against  a  mortgage  made  dur- 
ing coverture  by  the  husband,  but  to  which  she  was  no  party, 
and  to  that  end  made  her  a  party  to  the  bill,  it  was  held  that 
she  was  not  affected  by  the  decree,  for  as  dowress  she  held  by 
a  title  paramount  to  the  mortgage.  Nor  could  she  in  such  a 
suit  contest  the  validity  of  the  mortgage.^  Still,  her  interest 
is  not  such  that  at  common  law  she  could  bring  ejectment,  or 
maintain  a  process  for  partition,  in  respect  to  lands  of  her  de- 
ceased husband.^  If  she  entered  upon  such  lands  except 
under  her  right  of  quarantine,  she  would  be  a  trespasser,  and 
would  be  as  to  the  heir  an  abator,  if  her  husband  died  seised. 
Or  if  she  held  possession  beyond  the  period  of  her  quarantine, 
she  would  become  a  trespasser,  and  liable  to  be  expelled  by 
the  heir  by  ejectment.^  And  if  she  obtain  possession  under 
form  of  legal  process  of  assignment,  and  the  assignment  prove 
void,  she  may  be  regarded  as  a  disseisor.  And,  as  observed 
by  a  legal  writer,  this  is  probably  the  only  case  where  a  per- 
son who  has  a  title,  unopposed  by  any  adverse  right  of  pos- 
session, may  not  reduce  it  to  possession  by  an  entry  upon  the 
estate."  When  she  has  prosecuted  her  claim  for  dower  to 
judgment,  it  seems  to  give  so  much  consistency  to  her  title, 
that  if  she  then  release  it  to  the  tenant  in  possession,  it  will 

1  Elwood  V.  Klock,  13  Barb.  50. 

2  2  Crabb,  Real  Prop.  149 ;  Brown  v.  Meredith,  2  Keen,  527. 

3  Lewis  r.  Smith,  5  Seld.  502. 

*  Pringle  v.  Gaw,  5  S.  &  R.  5-36  ;  Doe  v.  Nutt,  2  Car.  &  P.  4-30  ;  Coles  v.  Coles, 
15  Johns.  319 ;  Bradshaw  v.  Callaghan,  5  Johns.  80. 
^  Corey  v.  People,  45  Barb.  265. 

6  4  Kent,  Com.  61 ;  Jackson  v.  O'Donaghy,  7  Johns.  247  ;  Hildreth  v.  Thomp- 
son, 16  Mass.  191 ;  McCully  v.  Smith,  2  Bailey,  103 ;  Park,  Dow.  336  ;  Sharpley, 
V.  Jones,  5  Barring.  373. 

7  Park,  Dow.  334. 


CH.  VII.  §  6.]  DOWER.  305 

not  extinguish  it,  but  he  may  avail  himself  of  it  against  a 
second  widow  claiming  dower  in  the  same  estate.^  But  still 
she  could  not  herself  enter  upon  land  as  her  dower  except  in 
pursuance  of  the  execution  of  a  writ  of  habere  facias? 
Though  she  need  not  wait  until  such  writ  has  been  returned 
into  court ;  as  soon  as  her  dower  is  designated  under  such 
writ,  she  may  enter  and  enjoy  it,  subject  only  to  the  hazard  of 
having  the  proceedings  set  aside  for  informality,  and 
thereby  becoming  a  tort  feasor  *  by  such  entry  and  [*254] 
occupancy.^  In  the  execution  of  such  a  writ,  the 
widow  has  no  right  to  elect  in  which  part  of  the  estate  her 
dower  shall  be  set  out,  provided  one-third  part  in  value  be 
assigned  to  her.*  Nor  is  it  until  her  dower  has  been  assigned, 
in  some  of  the  modes  heretofore  pointed  out,  that  the  estate 
of  a  dowress  becomes  consummated  and  clearly  fixed  and 
ascertained. 

3.  But  the  moment  this  has  been  done,  and  she  has  entered 
upon  the  premises  assigned  her,  the  freehold  therein  is  vested 
in  her  by  virtue  and  in  continuance  of  her  husband's  seisin.^ 
Therefore,  though  upon  the  death  of  the  husband  his  heir 
enters  and  gains  actual  seisin  of  the  premises,  as  soon  as  the 
widow  enters  under  her  assignment  of  dower  it  destroys  his 
seisin  at  once  of  so  much  of  the  inheritance,  and  he  is  thence- 
forward considered  as  never  having  been  seised  thereof.^  Yet 
she  cannot,  after  her  dower  is  assigned,  have  assumpsit  for  use 
and  occupation  of  her  dower  land  against  the  tenant  who  has 
held  it  since  her  husband's  death,  although  no  damages  shall 
have  been  allowed  her,  when  she  recovered  judgment  for  her 
dower.'^ 

4.  Nor  does  she  as  tenant  in  dower  hold  her  estate  of  the 
heir  or  tenant  who  set  it  out  to  her,  but  of  her  deceased  hus- 

1  Leavitt  v.  Lamprey,  13  Pick.  382.  2  Evans  v.  Webb,  4  Yeates,  42J. 

3  Co.  Lit.  37  b,  n. ;  Parker  v.  Parker,  17  Pick.  236  ;  2  Crabb,  Real  Prop.  152. 

4  Taylor  v.  Lusk,  7  J.  J.  Marsh.  636. 

5  Co.  Lit.  339  a;  Park,  Dow.  339,  340;  Windham  v.  Portland,  4  Mass.  384; 
Lawrence  v.  Brown,  1  Seld.  394;  Jones  v.  Brewer,  1  Pick.  314. 

6  Powell  V.  Monson,  3  Mason,  368;  Park,  Dow.  340;  Gilb.Ten.  27;  Lawrence 
i;.  Brown,  1  Seld.  394  ;  Perkins,  §  424  ;  Norwood  v.  Marrow,  4  Dev.  &  Bat.  442 ; 
2  Crabb,  Real  Prop.  143. 

■^  Thompson  v.  Stacy,  10  Yerg.  423;  Sutton  v.  Burrows,  2  Murph.  79; 
Andrews  v.  Andrews,  2  Green,  141. 

VOL  I  20 


306  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

band,  or  rather  by  appointment  of  the  law.^  The  law,  more- 
over, does  not  consider  that  there  is  any  privity  of  estate  be- 
tween the  dowress  and  the  reversioner  of  her  lands.^  Nor 
would  she  be  bound  by  any  proceedings  in  court  which  relate 

to  the  sale  of  her  husband's  interest  in  those  lands.'^ 
[*255]  And  so  independent  of  *  the  heir  is  the  estate  of  a 

dowress,  that  where  he  assigned  dower  lands  to  a 
widow,  and  at  the  same  time,  by  the  same  act,  limited  a  re- 
mainder to  a  third  person,  dependent  upon  her  life-estate  as  a 
particular  estate  to  support  it,  it  was  held  to  be  a  void  limita- 
tion as  to  the  remainder,  since  her  freehold  was  not  of  his  cre- 
ation, nor  could  he  unite  it  to  the  remainder  so  as  to  make 
them  one  estate  when  taken  together.*  After  the  language 
which  has  been  above  used,  and  the  cases  cited  illustrating 
the  relation  there  is  between  a  widow  and  the  heir  or  alienee 
of  the  husband,  in  respect  to  the  lands  which  may  have  been 
set  out  to  her  as  dower,  it  may  seem  somewhat  inconsistent 
for  the  law  writers  to  affirm  that  "  she  holds  of  the  heir  by 
fealty,  the  assignment  of  dower  being  a  species  of  subinfeu- 
dation ;  "  ^  and  "  in  point  of  tenure  a  dowress  holds  of  the  heir 
or  person  who  has  the  reversion  in  the  lands  assigned  to  her, 
notwithstanding  she  is  in  by  her  husband  and  not  by  the  heir."  ^ 
And  yet,  it  is  believed  that  the  several  propositions  may  be 
reconciled  by  considering  the  connection  in  which  the  language 
of  the  writers  is  used.  The  explanation  is  to  be  sought  in  the 
doctrine  of  feudal  tenures,  which  have  become  obsolete  or  of 
no  practical  importance.  B3'  the  theory  of  the  feudal  law 
every  estate  owes  certain  services  to  him  of  whom  itisholden. 
Fealty  was  one  of  these  services,  and  was  due  alike  from  free- 
holders and  tenants  for  years  as  an  incident  to  their  estates,  to 
be  paid  to  the  reversioner.'''  Previous  to  the  statute  of  Quia 
Umptores,  those  who  held  of  the  principal  lord  often  enfeoffed 
others  to  hold  of  them  by  what  was  called  subinfeudation. 
That  statute  put  an  end  to  these  mesne  tenures,  if  in  .fee,  and 

1  Conant  v.  Little,  1  Pick.  18'J;  Baker  v.  Baker,  4  Greenl.  67;  Park,  Dow.  340. 

2  Adams  v.  Butts,  9  Conn.  79. 

8  Lawrence  i;.  Brown,  1  Seld.  394. 

4  Park,  Dow.  §  34L     See  Plowd.  25.  ^  1  Cruise,  Dig.  165. 

6  Park,  Dow.  §  344 ;  Perkins,  §  424 ;  2  Crabb,  Real  Prop.  143. 

7  Co.  Lit.  67  I. ;  Lit.  §  132. 


CH.  VII.  §  6.]  DOWER.  307 

required  him  who  had  been  enfeoffed  by  the  lord's  tenant  to 
hold  directly  of  the  lord  himself,  and  to  pay  to  him  the  services 
due  in  respect  to  the  estate. ^  Still,  the  tenant  under  the 
lord  might  create  a  tenure  under  himself  for  life  or 
*  years,  while  he  continued  liable  for  the  services  due  [*256] 
to  the  lord.  And  in  such  case  there  was  still  a  fealty 
due  from  his  tenant  for  life  or  years  to  him  as  the  reversioner.^ 
So  long  as  the  husband  lived  and  was  the  owner  of  the  inher- 
itance, he  alone  owed  service  to  the  lord.  But  upon  his  death, 
his  inheritance  was  divided  between  the  heir  and  his  widow 
as  soon  as  her  dower  was  assigned,  she  taking  a  freehold  for 
life  in  one  third,  the  remaining  two  thirds  and  the  reversion 
in  her  third  going  to  the  heir,  who  became  substituted,  so 
far  as  the  service  to  the  lord  was  concerned,  to  the  husband 
as  owning  the  inheritance.  And  as  this  assigning  of  her  dower 
is  properly  the  act  of  the  heir,  it  is  regarded  as  a  kind  of 
subinfeudation  on  his  part  in  respect  to  the  widow.^  Now, 
though  she  came  in  as  of  the  seisin  and  estate  of  her  husband, 
the  same  law  that  gave  her  an  estate  for  life  gave  the  inheri- 
tance to  the  heir  in  reversion,  or,  if  it  had  been  aliened  by  the 
husband,  to  the  alienee.  And  as  fealty  was  incident  to  ever}'- 
life-estate  and  was  due  to  the  reversioner,  the  widow  may  be 
said  with  truth  to  hold  of  the  heir  by  fealty,  in  point  of  tenure, 
although  she  came  into  her  estate  as  of  the  seisin  and  estate  of 
her  husband.^  Nor  is  it  difficult  in  this  way  to  reconcile  the 
proposition  that  the  seisin  of  the  widow  is  in  her  by  relation 
from  the  death  of  the  husband,  and  thereb}'  destroys  the  in- 
termediate seisin  of  the  heir  or  alienee.  But  she  and  the  heir 
are  still  equally  in  the  "  seisin  "  of  the  estate,  using  that  term 
in  a  technical  sense,  as  denoting  the  completion  of  that  inves- 
titure by  which  the  tenant  was  admitted  into  the  tenure.^ 
The  tenant  in  such  case,  in  possession  of  the  freehold,  is  said 
to  have  the  actual  seisin  of  the  land,  the  fee  being  intrusted  to 
her.  And  it  was  because  of  the  fee  being  thus  iutrusted  to  the 
care  and  protection  of  the  tenant  in  dower  that  any  act  of  dis- 
affirmance of  the  reversioner's  title,  on  her  part,  was  held  to 

1  Wms.  Real  Prop.  95. 

2  Park,  Dow.  §  344 ;  Fitzh.  N.  B.  159  A.  3  2  Bl.  Com.  136. 

4  Wms.  Real  Prop.  101 ;  Co.  Lit.  67  b.  5  Co.  Lit.  266  b,  n.  217. 


808  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

work  a  forfeiture  of  her  estate,  as,  for  instance,  her  conve3'ing 
the  dower  lands  in  fee  to  a  stranger.^  And  where, 
[*257]  *  therefore,  she  was  invested  with  the  actual  seisin  by 
means  of  the  assignment  of  her  dower,  the  interme- 
diate seisin  of  the  heir  was  not  deemed  to  have  been  adverse 
to  hers,  nor  inconsistent  with  the  idea  that  her  seisin  took 
effect  by  relation  from  the  decease  of  the  husband, 

5.  As  has  more  than  once  been  stated,  the  estate  of  a  widow 
in  lands  assigned  to  her  in  dower  is  a  freehold  for  life,  carry- 
ing with  it  the  various  incidents  heretofore  enumerated  as  be- 
longing to  such  estates.  And,  ordinarilj^  the  incidents  to  her 
estate  in  dower  cease  with  her  estate  in  the  land.  As  where, 
for  instance,  a  right  of  way  was  set  out  as  appurtenant  to 
dower  lands,  across  other  lands  of  the  husband,  it  ceased  with 
the  determination  of  her  estate.^  But  where  a  certain  part  of 
a  house  was  set  out  as  dower  with  certain  easements  in  other 
parts  of  it  as  appurtenant,  and  the  parts  not  set  out  to  the 
widow  were  sold  and  described  as  being  all  the  estate  not  as- 
signed to  her,  it  was  held  that  at  her  death  these  easements 
continued  appurtenant  to  the  dower  portion  in  the  hands  of 
the  heirs.^  Among  other  duties  and  liabilities  of  a  dowress  is 
that  of  keeping  down  one  third  of  the  interest  upon  the  in- 
cumbrances or  charges  upon  the  estate,  subject  to  which  she 
holds  her  dower.*  She  is  answerable  for  waste  committed 
upon  the  premises,  whether  by  herself  or  a  stranger,  as  she  is 
bound  to  protect  the  reversioner's  interest.^  Sometimes,  how- 
ever, she  may  use  one  part  of  her  dower  land  in  2:)reference  to 
another,  and  thereby  be  exonerated  from  liability  for  waste, 
when  she  would  have  been  liable  if  it  had  been  the  only  es- 
tate set  out  to  her.  As  where  the  commissioners  set  out  one 
third  part  of  eight  different  parcels  into  which  they  divided 
the  estate,  and  one  of  these  was  woodland,  it  was  held  that, 
though,  as  a  general  proposition,  she  would  be  bound  to  use 
each  parcel  as  if  it  had  been  the  only  land  of  which  her  hus- 
band died  seised,  she  might  in  such  case  take  wood  and 
[*258]  timber  from  that  lot  for  the  use  of  the  cultivated  *lan(l.^ 

1  Co.  Lit.  266  b,  n.  217. 

2  Hoffman  v.  Savage,  15  Mass.  130.  «  Symmes  v.  Drew,  21  Pick.  278. 
*  2  Crabb,  Real  Prop.  154.  5  2  Crabb,  Real  Prop.  155. 

6  Childs  V.  Smith,  1  Md.  Ch.  Dpo.  483;  Cook  v.  Cook.  11  Gray,  123. 


CH.  VII.  §  6.]  DOWER.  309 

And  in  Ohio,  where  an  unproductive  town  lot  together  with 
an  unimproved  wood-lot  were  set  out  as  a  widow's  dower, 
it  was  held  not  to  be  waste  to  cut  off  and  sell  enough  wood 
from  the  woodland  to  pay  the  taxes  upon  both  parcels.'  *  If 
a  widow  is  endowed  with  wild  lands  in  North  Carolina,  she 
may  clear  a  part  thereof,  if  necessary,  for  the  support  of  her 
family.^ 

*NoTE.  —  Most  of  the  States  have  statute  provisions  as  to  the  effect  of  di- 
vorces upon  dower  and  curtesy.  In  Massacluisefls,  when  a  divorce  a  vinculo  is 
decreed  for  the  cause  of  adultery  committed  by  the  liusband,  or  on  account  of 
his  being  sentenced  to  confinement  to  liard  labor,  the  wife  is  entitled  to  her  dower 
in  his  lands  in  tlie  same  manner  as  if  he  were  dead  ;  but  she  is  not  entitled  to 
dower  in  any  other  case  of  divorce  /rowi  the  bonds  of  matrimomi.  —  In  Maine,  the  wife 
is  in  like  manner  entitled  to  dower  when  such  divorce  is  decreed  to  her  for  the 
fault  of  the  husband,  for  any  cause  except  impotence.  And  in  both  these  States, 
upon  tlie  dissolution  of  a  marriage  by  a  divorce,  or  sentence  of  nullity  for 
any  cause  excepting  that  of  adultery  committed  by  the  wife,  the  wife  is  entitled 
to  the  immediate  possession  of  all  her  real  estate.  Mass.  Gen.  Stat.  c.  404,  sup. 
1870;  Me.  Rev.  Stat.  1857,  c.  60,  §  6. — In  Maine,  when  a  divorce  from  bed 
and  board  is  decreed,  and  there  is  no  issue  living,  the  wife's  real  estate  is  re- 
stored to  her ;  if  there  is  issue  living,  or  the  divorce  is  decreed  for  the  cruelty  of 
the  wife,  the  court  may  exercise  its  discretion  as  to  the  restoration  of  property. 
Id.  §  13.  —  In  Massachusetts,  there  are  no  longer  divorces  from  bed  and  board, 
but  divorces  nisi,  wliich  after  five  or  three  years  may  become  absolute.  Stat.  c. 
404,  sup.  Gen.  Stat. ;  Sparhawk  i'.  Sparhawk,  116  Mass.  315.  —  In  Connecticut,  it 
is  declared  that  in  case  of  divorce  where  the  wife  is  the  innocent  party,  she  is  enti- 
tled to  dower.  Gen.  Stat.  1866,  p.  421 ;  Rev.  Stat.  1875,  p.  376.  And  if  the  di- 
vorce be  for  the  misconduct  of  the  wife,  the  court  may  decree  that  her  lands  re- 
vert to  her  husband.  Acts,  1866.  —  In  Rhode  Island,  when  a  divoi'ce  a  vinculo 
is  decreed  to  the  wife  for  fault  of  the  husband,  if  tliere  be  no  issue  living,  she  is 
restored  to  all  her  lands,  tenements,  and  hereditaments.  If  there  be  issue  liv- 
ing at  the  time  of  the  divorce,  the  court  may  act  at  their  discretion  in  regard 
to  such  restoration.  Rev.  Stat.  1857,  c.  187,  §§  7,  8 ;  Gen.  Stat.  1872.  —  ImVew 
Hampshire,  it  is  simply  provided  that  upon  any  decree  of  nullity  or  divorce,  the 
court  may  restore  to  the  wife  all  or  any  part  of  her  real  estate.  Gen.  Stat.  1867, 
c.  163,  §  12.  —  So  in  Vermont,  except  when  the  divorce  be  for  the  adultery  of 
the  wife.  Rev.  Stat.  1863,  c.  70,  §  33.  —  In  Neiv  York  and  Arkansas,  in  case  of 
divorce  dissolving  the  marriage  contract  for  the  misconduct  of  the  wife,  she  shall 
not  be  endowed.  But  when  a  decree  dissolving  the  marriage  is  pronounced  iu 
favor  of  the  wife,  all  her  real  estate  becomes  her  absolute  property ;  N.  Y.  Rev. 
Stat.  5th  ed.  1859,  vol.  3,  pp.  32,  237  ;  Stat,  at  Large,  1874 ;  and  if  the  divorce  be 
on  account  of  the  adultery  of  the  husband,  the  wife  has  dower  if  she  survives  him. 

1  Crockett  v.  Crockett,  2  Ohio,  n.  s.  180.  See  also  Padelford  v.  Padelford,  7 
Pick.  152 ;  Dalton  v.  Dalton,  7  Ired.  Eq.  197.  And  see  also,  as  to  her  cutting 
timber,  &c.,  on  wild  lands,  ante,  p.  *110,  n.  3. 

2  Lambeth  v.  Warner,  2  Jones,  Eq.  165. 


310  LAW    OP    REAL   PROPERTY.  [bOOK    I. 

[*259]  Forrest  i;.  Forrest,  6  Duer,  102;  Ark.  Dig.  *]8.58,  c.  59,  §  13,  and  c.  GO, 
§8;  St.  1873. — In  Missouri,  in  all  cases  of  divorce  from  the  bonds  of 
matrimony,  the  guilty  party  forfeits  all  rights  and  claims  under  and  by  virtue  of 
tiie  marriage  ;  and  if  the  wife  obtain  a  divorce  from  the  bonds  of  matrimony,  all 
property  tliat  came  to  her  husband  by  the  marriage,  that  is  undisjiosed  of  at  the 
time  of  filing  the  petition,  reverts  to  the  wife  and  children.  Gen.  Stat.  18G6,  c. 
114,  §§  8,  y ;  Wagner's  Stat.  1870.  —  In  Michigan,  when  a  marriage  is  dissolved 
for  the  cause  of  adultery  committed  by  the  husband,  for  his  misconduct  or  habitual 
drunkenness,  or  on  account  of  his  being  sentenceil  to  imprisonment  for  a  term  of 
three  years  or  longer,  the  wife  is  entitled  to  her  dower  in  his  lands,  in  tlie  same 
manner  as  if  he  were  dead  ;  but  she  is  not  entitled  to  dower  in  any  other  case  of 
divorce;  and  upon  the  dissolution  of  marriage  for  any  cause  excepting  tlie  adul- 
tery of  the  wife,  she  is  entitled  to  the  restoration  of  all  her  real  estate.  Conip. 
Stat.  c.  108,  §§  23,  24.  —  In  Minnesota,  in  case  of  divorce  for  any  cause  but  adultery 
of  the  wife,  or  a  nullity  of  marriage  declared,  or  the  husband  is  sentenced  to  im- 
prisonment for  life,  the  wife  is  entitled  to  her  lands  as  if  her  husband  were 
dead.  If  the  property  thus  restored  be  insufficient  for  her  support  and  that  of 
lier  children  committed  to  her,  the  court  may  decree  to  her  such  real  estate  of 
the  husband,  not  exceeding  the  value  of  her  dower,  as  they  may  deem  just  and 
reasonable.  If  the  marriage  is  dissolved  by  imprisonment  of  husband  or  his 
adultery,  she  takes  her  dower  as  if  he  were  dead.  liev.  8tat.  18(36,  c.  62.  —  In 
Kansas,  a  woman  divorced  for  the  fault  or  misconduct  of  her  husband  does  not 
therebj'  lose  her  dower ;  but  is  not  endowed  if  divorced  for  her  fault  or  miscon- 
duct. Gen.  Stat.  1868,  c.  30,  §  647.  —  In  California,  where  the  statute  has  done 
away  with  the  common-law  right  of  dower,  and  substituted  in  its  place  a  half  in- 
terest in  the  common  property,  it  is  provided  that  in  case  of  the  dissolution  of  the 
marriage,  tlie  common  property  shall  be  equally  divided  between  the  parties,  ex- 
cept that  when  the  divorce  is  rendered  on  the  ground  of  adultery  or  extreme 
cruelty,  the  guilty  party  is  entitled  to  only  such  portion  of  the  common  property 
as  the  court  deem  just.  Wood's  Dig.  1858,  p.  488,  §  12;  Code,  1872.  —  In  Da- 
cota/i,  on  a  divorce  for  aggression  of  the  husband,  the  wife  is  restored  to  her  own 
lands  and  has  dower  if  she  survive.  If  for  the  aggression  of  the  wife,  her  dower 
is  barred,  but  her  lands  are  restored  to  her,  and  in  all  cases  a  divorce  bars 
the  guilty  party  from  succession.  Laws,  1867.  —  In  Nebraska,  the  wife  has 
dower  on  divorce  for  husband's  adultery,  drunkenness,  or  misconduct.  In  di- 
vorce from  the  bonds  of  matrimony  for  any  cause  except  the  wifie's  adultery,  she 
has  her  own  real  estate,  as  also  in  every  divorce  from  bed  and  board.  Kev. 
Stat.  18G6  ;  Gen.  Stat.  1873.  And  in  Wisconsin,  when  the  marriage  is  dissolved 
for  the  cause  of  adultery  committed  by  the  husband,  or  on  account  of  his  being 
sentenced  to  imprisonment  for  a  term  of  three  years  or  more,  but  not  in  any  other 
case  of  divorce.  Rev.  Stat.  1858,  c.  Ill,  §  25.  —  In  Indiana,  although  the  estate 
of  dower  is  abolisiied,  it  is  enacted  that  a  divorce  granted  for  the  misconduct  of 
the  Imsband,  shall  entitle  the  wife  to  the  same  rights,  so  far  as  his  real  estate  is 
concerned,  that  she  would  have  been  entitled  to  b^-  his  death.  Eev.  Stat.  1852, 
vol.  2,  p.  237 ;  Acts,  1872-3,  c.  43,  §  18.  And  it  is  enacted  that  if  a  wife  shall 
have  left  her  husband,  and  shall  be  living,  at  the  time  of  his  death,  in  adultery, 
she  shall  take  no  part  of  the  estate  of  her  husband.  Id.  vol.  1,  p.  253;  Acts, 
1859,  c.  60,  §  6.  —  In  Illinois,  upon  a  divorce  for  the  fault  or  misconduct  of  the 
wife,  she  forfeits  her  dower.  Comp.  Stat.  1858,  vol.  1,  p.  153.  It  is  to  be  no- 
ticed in  regard  to  the  statutes  of  both  Indiana  and  Illinois,  that  the  language  in 


CH.  VII.  §  6.]  DOWER.  311 

regard  to  the  divorce  is  general,  not  specifying  that  it  is  a  divorce  a  vinculo.  — In 
Tennessee,  if  the  bonds  of  matrimony  be  dissolved  at  the  suit  of  the  husband,  the 
wife  is  in  no  case  entitled  to  dower.  Code,  1858,  §  2473.  —  In  Alabama,  a  divorce 
for  the  adultery  of  the  wife  bars  her  dower.  Code,  1867,  §  2364.  —  In  Ohio,  if  , 
divorce  be  granted  by  reason  of  aggression  of  the  husband,  the  wife  is  restored 
to  her  lands,  and  shall  be  allowed  alimony  out  of  his  real  and  personal  estate ; 
and,  if  she  survive  him,  she  shall  have  dower  in  his  real  estate.  But  if  the  di- 
vorce is  for  the  aggression  of  the  wife,  she  loses  all  right  of  dower  in  her  hus- 
band's lands,  but  has  a  restoration  of  her  own  lands  and  such  share  of  his  lands 
as  the  court  shall  judge  reasonable.  It  is  provided  that  if  a  wife  willingly  leave 
her  husband  and  dwell  with  her  adulterer,  she  shall  lose  her  right  of  dower;  but 
shall  be  restored  to  this  riglit  on  her  return  and  reconciliation  with  her  hus- 
band. Rev.  Stat.  18G0,  c.  37,  §  7.  — In  New  Jersey,  Nixon's  Dig.  1855,  p.  211,  §§ 
14,  15 ;  Nortf,  Carolina,  Eev.  Code,  1854,  c.  118,  §  11 ;  Virginia,  Code,  1849,  c. 
110,  §  7;  Delaware,  Rev.  Code,  1852,  c.  87,  §  9  ;  South  Carolina,  Stats  at  Large, 
vol.  2,  p.  422  ;  Kentucky,  Rev.  Stat.  1860,  c.  47,  art.  4,  §  4.  And  in  the  latter 
State  the  provision  is  general,  barring  curtesy  and  dower  by  divorce  granted. 
Id.  §  15.  —  In  Nevada,  if  the  divorce  be  by  reason  of  the  imprisonment  of  the 
husband  or  his  adultery,  the  wife  takes  her  dower  as  if  he  were  dead.  I  Comp.  L. 
§  220.  —  In  Maryland,  when  a  man  is  convicted  of  bigamy,  his  first  wife  is 
forthwith  endowed  of  one  third  of  his  real  estate,  tbe  assignment  and  recovery 
of  which  are  made  as  in  other  cases  of  dower;  but  when  a  woman  is  so  con- 
victed, she  forfeits  her  claim  to  dower  of  the  estate  of  her  first  husband.  Dor- 
sey's  Laws,  vol.  1,  §  7,  p.  579  ;  Maryland,  Code,  1860,  p.  207.  —  In  Massachusetts, 
Maine,  Vermont,  and  Michigan,  when  a  divorce  a  vinculo  matrimonii  is  de- 
creed for  the  cause  of  adultery  committed  by  the  wife,  the  husband  *  shall  [*260] 
hold  her  real  estate  so  long  as  they  shall  both  live ;  and  if  he  shall  sur- 
vive her,  and  there  shall  have  been  issue  of  the  marriage  born  alive,  he  shall 
hold  lier  real  estate  for  the  term  of  his  own  life,  as  a  tenant  by  the  curtesy  ;  but 
the  court  may  allow  her  so  much  of  her  real  or  persons^  estate  as  is  necessary  for 
her  subsistence.  Mass.  Gen.  Stat.  1860,  c.  107,  §  39;  Me.  Rev.  Stat.  1871,  c.  60; 
Vt.  Comp.  Stat.  1850,  c.  67,  §§  42,  43 ;  Mich.  Comp.  Laws,  c.  108,  §§  25,  26. 
Such  is  the  law  in  Rhode  Island,  when  a  husband  has  obtained  a  divorce  a  vinculo 
for  any  cause.  Rev.  Stat.  1857,  c.  137,  §§  5,  6.  —  In  Vermont,  if  there  be  a  di- 
vorce for  any  cause  except  the  adultery  of  the  wife,  she  is  entitled  to  her  lands 
in  the  same  way  as  if  her  husband  were  dead.  Gen.  Stat.  1862,  c.  70,  §  32.  —  In 
Oregon,  if  a  marriage  is  dissolved,  the  party  at  whose  prayer  it  is  done  shall  be 
entitled  to  one  third  part  in  fee  of  the  whole  of  the  real  estate  owned  by  the 
other  at  the  time  of  the  dissolution.  Gen.  L.  p.  210.  —  In  Maine  and  Rhode 
Island,  these  provisions  entitling  tlie  husband  to  curtesy  in  case  of  divorce,  do  not 
apply  to  the  wife's  property  secured  to  her  by  the  laws  allowing  her  to  hold  a 
separate  property.  Stats,  sup.  —  In  New  York  and  Tennessee,  if  a  decree  dissolv- 
ing the  marriage  be  pronounced  in  favor  of  the  husband,  his  right  to  any  real 
estate  owned  by  the  wife  at  the  time  of  pronouncing  the  decree  in  her  own  right, 
and  to  the  rents  and  profits  thereof,  is  not  taken  away  or  impaired  by  such  dis- 
solution of  the  marriage.  N.  Y.  Rev.  Stat.  5tli  ed.  1859,  vol.  8,  p.  237  ;  Code 
of  Tenn.  1858,  §  2472.  —  In  Illinois,  when  a  divorce  is  obtained  for  the  fault  and 
misconduct  of  the  husband,  he  loses  his  right  to  be  tenant  by  the  curtesy  in  the 
wife's  lands.  Comp.  Stat.  1858,  vol.  1,  p.  153.  —  In  Alabama,  a  divorce  deprives 
the  husband  of  all  control  over  the  separate  estate  of  the  wife.     Code,  1852, 


312  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

§  1976. — In  Indiana,  although  the  estate  by  curtesy  is  abolisheJ,  a  divorce  de- 
creed on  account  of  tlie  misconduct  of  the  wife,  entitles  the  husband  to  the  same 
rights  so  far  as  his  or  her  real  estate  is  concerned,  as  he  would  have  been  entitled 
to  by  her  death.  2  Rev.  Stat.  1852,  p.  237 ;  Acts,  1872-3,  c.  43,  §  18.  But  if  a 
husband  siiall  have  left  his  wife  and  shall  be  living  at  the  time  of  her  death  in 
adultery,  or  shall  abandon  his  wife  without  just  cause,  failing  to  make  suitable 
provision  for  her,  he  shall  take  no  part  of  her  estate.  Kev.  Stat.  vol.  1,  p.  253, 
The  language  in  regard  to  the  divorce  in  the  statutes  of  Indiana  and  Illinois  is 
general.  —  In  Maryland,  a.  husband  forfeits  his  claim  or  title  as  tenant  by  the 
curtesy  on  conviction  of  bigamy.  Dorsey's  Laws,  vol.  1,  §  7,  p.  580 ;  Maryland, 
Code,  1860,  p.  207.  —  In  Ohio,  if  a  tenant  by  curtesy  or  in  dower  neglect  to  pay 
the  taxes  on  the  estate  so  long  that  it  is  sold  for  the  payment  of  the  taxes,  and 
does  not  redeem  within  one  year  after  such  sale,  the  estate  is  forfeited  to  the 
next  remainder-man  or  reversioner  who  may  redeem.  Rev.  Stat.  1854,  c.  113, 
§106. 


CH.   VIII.]  JOINTURE.  313 


CHAPTER  VIII. 

JOINTURE. 

• 

1,  2.  Jointure  defined  and  classified. 

3.  Division  of  tlie  subject. 

4.  Origin  of  jointures. 

5.  Jointures  as  affected  by  Statute  of  Uses. 
6,  7.  Requisites  of  a  legal  jointure. 

8.  When  jointures  are  a  bar  of  dower. 

9.  When  wife  must  assent  to  jointure. 

10.  Effect  of  eviction  from  jointure. 

11.  Jointure  settled  after  marriage. 

12.  Widow  may  enter  at  once  into  jointure  lands. 

13.  Jointures  have  incidents  of  life-estates. 

14.  How  jointure  may  be  lost. 

15.  How  far  stat.  Henry  VIII.  adopted  in  United  States. 

16.  Of  equitable  jointures. 

17.  Equitable  jointures  require  assent  to  be  valid. 

18.  When  widow  may  elect  dower  or  jointure. 

19.  How  equitable  jointures  bar  dower. 

20.  Effect  of  eviction  from  equitable  jointure. 

21.  Effect  of  relinquishing  jointure. 

22.  Effect  of  jointures  in  United  States. 

23.  Testamentary  jointures. 

24,  25.  Effect  of  accepting  testamentary  provision. 

26.  Where  widow  required  to  elect  the  one  or  the  other. 

27.  Where  she  may  elect  in  what  character  to  take. 

28.  How  election  is  evidenced. 

29.  Right  of  jointress  if  deprived  of  her  provision. 

1.  In  treating  of  dower,  it  has  been  seen  that  one  mode  of 
barring  the  claim  of  a  widow  to  dower  is  by  settling  upon  her 
an  allowance  previous  to  marriage  to  be  accepted  by  her  in 
lieu  thereof.  This  is  called  a  jointure,  and  although  once 
very  common  in  England,  it  has  become  of  little  mo- 
ment since  the  *  Dower  Act  of  3  &  4  Wm.  IV.  c.  105,  [*262] 
has  placed  the  subject  of  the  wife's  dower  under  the 
control  of  the  husband  in  all  cases  where  special  provision  is 
not  made  in  her  favor.  This  is  usually  done  by  marriage  set- 
tlements. But  it  is  nevertheless  important  to  understand  the 
nature  and  origin  of  jointures,  and  the  rules  by  which  they 


314  LAW   OF   REAL    PEOPERTF.  [BOOK   I. 

are  generally  governed.  Jointures  are  not  of  the  nature  of 
contracts,  but  of  provisions  made  by  the  husband  for  the 
wife.^ 

2.  They  are  of  two  kinds  —  one  at  law,  the  other  in  equity. 
The  former  include  estates  in  lands  made  to  a  woman  in  con- 
templation of  marriage,  or  a  wife  after  marriage  in  satisfac- 
tion oj^  dower.  They  are  occasionally  used  in  this  country, 
though  what  are  called  equitable  jointures  are  more  frequenllj" 
adopted  than  those  at  law. 

3.  The  subject  may  be  considered  under  the  following 
heads:  I.  Legal  jointures ;  1,  made  before  marriage  ;  2, made 
after  marriage.  II.  Equitable  jointures  ;  1,  made  before  mar- 
riage ;  2,  made  after  marriage.  III.  Testamentary  and  other 
provisions  in  lieu  of  dower. 

4.  Before  the  time  of  Henry  VIII.  there  had  grown  up  a 
species  of  property  in  lands  called  uses,  by  which,  while  one 
man  owned  the  legal  estate  with  all  its  incidents  of  seisin, 
tenure,  &c.,  another  had  a  usufructuary  interest  in  and  out 
of  the  same,  of  which  he  availed  himself  through  the  instru- 
mentality of  courts  of  equity.  As  there  could  be  no  seisin  of 
this  intangible  right,  no  dower  could  be  acquired  in  it.  And 
husbands  resorted  to  it  as  a  means  of  preventing  their  wives 
claiming  dower,  by  having  estates  conveyed  to  some  other 
person  to  hold  to  the  use  of  the  husband.  Nor  was  there  any 
way,  except  bj^  conveyances  to  uses,  by  which  provision  could 
be  made  for  a  wife,  by  any  ante-nuptial  arrangement,  which 
should  supersede  or  bar  her  future  claim  for  dower  if  she  sur- 
vived her  husband ;  and  this  on  technical  grounds  :  first,  that 
at  common  law  no  person  could  bar  himself  of  any  right  or 

title  to  lands  by  receiving  any  collateral  thing  in  sat- 
[*263]   isfaction,  unless  he  had  *  actually  executed  a  release  ; 

and,  second,  because,  until  married,  a  woman  could 
not  execute  a  valid  release  of  the  property  of  her  contemplated 
husband,  to  which  she  had  till  then  notitle.^  When,  therefore, 
a  husband  wished  to  make  provision  as  a  substitute  for  dower 
for  the  wife  whom  he  was  about  to  marry,  he  had  such  parts  of 
his  lands  as  were  thought  a  reasonable  proportion,  conveyed 

'  Buckinghamshire  v.  Drury,  per  Ld.  Mnnsficlrl,  2  Eden,  72. 

2  Vernon's  case,  4  Rep.  1 ;  Hastings  v.  Dicliinson,  7  Mass.  153  ;  Co.  Lit.  36  b. 


CH.  VIII.]  JOINTURE.  315 

by  the  person  who  held  the  legal  seisin  thereof  to  some  one 
to  the  use  of  the  husband  and  wife  for  the  term  of  their  lives. 
This  created  a  kind  of  joint  tenancy  or  jointure,  whereby  the 
wife,  if  she  survived  the  husband,  enjoyed  the  estate  daring 
her  life.  There  was  this  peculiarity  in  the  joint  estate  of 
husband  and  wife,  as  there  still  is,  that  neither  could  defeat 
the  right  of  survivorship  of  the  other.^  * 

5.  By  the  statute  27  Henry  VIII.  c.  10,  called  the  Statute 
of  Uses,  an  attempt  was  made  to  do  away  with  uses  by  uniting 
the  legal  and  equitable  estates  and  giving  them  thus  united  to 
the  one  in  whose  favor  the  use  had  been  declared.  The  con- 
sequence would  have  been,  had  this  idea  been  carried  out, 
that  all  husbands,  cestuis  que  use,  would  have  become  seised 
of  the  legal  estate  and  thereby  have  given  dower  to  their 
wives,  even  though  these  might  already  have  had  provision 
made  for  them  before  marriage.  To  obviate  a  consequence 
like  this,  it  was  provided  by  that  statute,  §§  6,  7,  8,  and  9, 
substantially,  that  if  lands  were  conveyed  for  the  benefit  of  a 
wife  before  marriage,  in  the  manner  pointed  out  in  §  6,  as  her 
jointure,  she  should  not  have  dower  unless  evicted  from  her 
jointure  lands.  If  such  jointure  was  created  after  marriage, 
then  she  might  elect  to  take  the  jointure  or  dower,  but  not 
both.2 

*6.  But  in  order  to  have  such  provision  operate  as  [*261] 
a  bar  to  dower,  it  must  conform  to  all  the  require- 
ments prescribed  by  the  statute,  which  are  as  follows :  1.  It 
must  take  effect  immediately  ujDon  the  death  of  the  husband. 
2.  It  must  be  for  her  own  life  at  least.  No  estate  for  years, 
or  per  autre  vie,  will  answer.  3.  It  must  be  made  to  herself, 
and  not  to  another  in  trust  for  her.     4.  It  must  be  made  and 

*  Note.  —  Settlements  by  way  of  provision  for  tlie  wife  previous  to  marriage, 
ai'B  said  to  have  been  in  use  among  the  ancient  Germans  and  Gauls  ;  and  Caesar 
and  Tacitus  are  quoted  to  sustain  the  position.  The  latter  says,  Dutem  non  uxor 
marito  std  uxori  maritus  ojfert,  intersunt  parenies  et  propinqui,  et  munera  prohant. 
De  Mor.  Germ.  c.  18  ;  2  FUnt,  Real  Prop.  198,  n. 

1  2  Bl.  Com.  137  ;  Vernon's  case,  4  Eep.  1 ;  Tud.  Cas.  730 ;  1  Atk.  Conv.  410, 
n. ;  Id.  261. 

2  Stat,  at  Large ;  1  Atk.  Conv.  204 ;  2  Bl.  Com.  137  ;  McCartee  v.  Teller,  2 
Paige,  Ch.  562. 


316  LAW   OP   EEAL   PROPERTY.  [BOOK   I. 

expressed  in  the  deed  to  be  in  full  satisfaction  of  her  dower.^ 
And  though,  ordinarily,  for  life  only,  jointures  may  be  estates 
in  fee,  and  be  good.^  A  provision,  in  order  to  come  within  the 
character  of  a  jointure,  must  consist  wholly  of  land.  If  it 
consists  partly  of  land  and  partly  of  an  annuity,  it  will  not 
bar  dower  unless  the  annuity  is  secured  upon  land.^  Nor 
would  an  estate  upon  condition  be  a  binding  provision  for  a 
widow  as  a  jointure,  unless  upon  the  husband's  death  she 
elect  to  enter  and  accept  the  conditional  estate.  If  she  do, 
she  will  be  bound  by  it  and  be  barred  of  dower.* 

7.  Though  a  jointure,  in  its  original  meaning  and  common 
acceptance,  implies  a  joint  estate  in  the  husband  and  wife  with 
the  principle  of  survivorship,  it  extends  to  a  sole  estate  lim- 
ited to  the  wife  alone.  Nor  is  it  necessary  that  it  should  pro- 
ceed directly  from  the  husband  ;  it  may  come  from  the  father 
or  any  other  person.  And  it  may  be  by  a  grant  to  the  wife 
before  coverture,  or  a  grant  to  her  by  any  person  other  than 
her  husband  during  coverture.  So  it  may  be  by  a  convey- 
ance to  her  use  either  before  or  during  coverture,  and  may  be 
to  the  wife  and  husband  jointly,  or  to  the  wife  alone. ^ 

8.  Although  Coke,  in  defining  jointure,  speaks  of  it 
[*265]  as  a  *  competent  livelihood  of  freehold  for  the  wife,  of 
lands,  &c.,  the  law  furnishes  no  measure  of  compe- 
tency ;  and  if  it  complies  with  the  requisites  of  the  statute  as 
to  qualities  and  incidents,  it  will  bar  dower,  whatever  may  be 
its  amount.^  Such  will  be  the  effect  where  it  is  settled  before 
marriage,  though  the  wife  be  a  minor  at  the  time.  Nor  is  it 
necessary,  though  usual,  to  have  the  assent  of  the  parents  or 
guardian  of  the  wife  in  such  case,  if  the  provision  be  a  fair 

1  1  Atk.  Conv.  165  ;  2  Bl.  Cora.  138  ;  2  Flint,  Real  Prop.  197  ;  Co.  Lit.  36  b  ; 
Vernon's  case,  4  Rep.  1,  by  wliich  it  is  held  that  an  estate  durante  viduitate  which 
may  continue  for  her  life,  would  be  a  good  jointure,  except  in  case  the  wife  was 
a  minor.     McCartee  v.  Teller,  2  Paige,  Ch.  562. 

2  1  Roper,  Hus.  &  Wife,  465.  ^  Vance  v.  Vance,  21  Me.  364. 

*  Clancy,  Rights  of  Worn.  209  ;  Vernon's  case,  4  Rep.  1 ;  McCartee  v.  Teller, 
2  Paige,  Ch.  562  ;  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  500. 

*  2  Flint,  Real  Prop.  196  ;  1  Roper,  Hus.  &  Wife,  465 ;  3  Prest.  Abs.  376 ;  1 
Cruise,  Dig.  195. 

8  1  Atkinson,  Conv.  266;  Drury  v.  Drury,  2  Eden,  57;  Buckinglmnishire  v. 
Drury,  2  Eden,  75,  n. ;  1  Bright,  Hus.  &  Wife,  434. 


CH.  yill.]  JOINTURE.  317 

one,  not  illusory  in  its  character  ;  but  such  assent  negatives 
the  idea  of  the  provision  being  illusory  and  fraudulent.^ 

9.  Nor  is  it  even  necessary  that  the  wife  herself  should,  in 
England,  assent  to  the  jointure  before  marriage,  whereas,  in 
Maine,  she  must  have  assented  to  have  it  have  effect.^  There 
is  a  form  of  conveyance  by  the  way  of  jointure  in  Oliver's 
Practical  Conveyancer,  which  is  an  indenture  of  three  parts, 
to  which  the  wife  is  a  party.  But  it  is  remarked  in  a  note  to 
that  work,  that  it  is  not  necessary  she  should  be  a  party  to  the 
deed.2  But  while  the  law  as  to  jointures  is  adopted  in  most 
of  the  United  States,  the  statutes  of  several  of  them  require 
the  wife  to  be  made  a  party  to  the  deed  and  express  her  as- 
sent in  the  deed,  if  of  full  age  ;  if  under  age,  by  joining  with 
her  father  or  guardian  in  the  conveyance.  Among  these, 
Maine,  Massachusetts,  New  York,  Arkansas,  Connecticut, 
Delaware,  and  it  is  believed  some  other  of  the  States,  have 
provisions  substantially  like  those  above  stated.^ 

10.  If  the  widow  is  evicted  from  her  jointure  lands  by  de- 
fect of  title,  she  may  be  remitted  to  her  right  of  dower  jpro 
tanto  or  in  the  whole,  as  the  case  may  be,  out  of  her  husband's 
estate.^ 

11.  If  the  jointure  is  not  settled  upon  the  wife  until 

after  *  the  marriage,  it  is  no  further  binding  upon  her  [*266] 
than  that  she  must  elect,  at  the  husband's  death,  to 
take  it  in  lieu  of  dower,  or  to  take  her  dower ;  she  cannot 
have  both.^  But  it  is  not  a  jointure  unless  so  expressed,  al- 
though it  be  by  deed  from  husband  to  wife,  in  consideration 
of  love  and  affection." 

,  12.  When  a  jointure  takes  effect,  whether  settled  before  or 
after  marriage,  the  widow  is  at  liberty  to  enter  at  once  into 
the  occupation  and  enjoyment  of  it  upon  the  death  of  the  hus- 

1  Co.  Lit.  36  b  ;  3  Prest.  Abs.  377  ;  Buckinghamsliire  v.  Drury,  2  Eden,  G4,  74 ; 
McCartee  v.  Teller,  2  Paige,  Ch.  656  ;  1  Roper,  Hus.  &  Wife,  471 ;  1  Cruise,  Dig. 
196. 

2  Vance  v.  Vance,  21  Me.  370.  3  1  Cruise,  Dig.  199. 
*  Wms.  Real  Prop.  193,  Am.  note  ;  Bubier  v.  Roberts,  49  Me.  463. 

5  1  Atkinson,  Conv.  269  ;  3  Prest.  Abs.  377 ;  4  Dane,  Abr.  685,  686. 

6  McCartee  i'.  Teller,  2  Paige,  Ch.  556  ;  2  Flint,  Real  Prop.  197. 

^  Bubier  v.  Roberts,  49  Me.  463.  Post,  *279.  See,  for  the  common  law.  Reed 
i;.  Dickerman,  12  Pick.  149;  Mass.  Gen.  Stat.  c.  90,  §  11. 


318  LAW   OF    REAL    PROPERTY.  [l300K    1. 

band,^  though  it  is  said  that  she  may  not  claim  the  annual 
crops  growing  at  the  time  of  his  death.^ 

13.  While  she  holds  her  jointure  lands,  if  she  has  only  a 
life-estate  in  them,  she  holds  them  subject  to  the  same  restric- 
tions as  tenants  for  life,  unless  there  was  a  covenant  in  the 
instrument  settling  them  upon  her  that  her  jointure  should  be 
of  a  certain  yearl}^  value.  In  such  case,  if  it  can  only  be 
raised  b}^  committing  Avaste,  she  may  commit  it  so  far  as  is 
necessary.^ 

14.  A  wife  does  not  lose  her  jointure  as  she  would  her 
dower,  by  eloping  and  living  in  adultery.*  But  if  she  and 
her  husband  join  in  conveying  away  the  lands  settled  upon  her 
before  marriage,  as  a  jointure,  she  thereby  loses  both  dower 
and  jointure  ;  but  if  settled  after  marriage,  she  is  remitted  to 
her  right  to  claim  dower.^ 

15.  The  statute  of  27  Hen.  VIII.  has  been  substantially 
adopted  in  most  of  the  United  States,  though  modified  in 
some  particulars.  As  in  Ohio,  where  a  minor  has  the  election 
to  take  dower  or  her  jointure,  though  settled  before  marriage. 
In  Connecticut,  jointure  may  consist  of  personal  as  well  as 
real  estate.^  But  in  Massachusetts  it  has  been  held,  that 
under  the  statute  of  Hen.  VIII.  a  wife  cannot  bar  herself  of 

her  dower  by  any  covenant  not  to  claim  it  in  consid- 
[*267]   eration  of  anything  *  else  than  a  freehold  estate  set- 
tled upon  her,  as  she  cannot  before  marriage  release 
a  right  which  is  not  in  existence.'' 

16.  Though  equitable  jointures  are  not  within  the  statute 
of  Hen.  VIII.,  they  are  held  to  be  equally  operative,  when 
taking  effect,  to  bar  dower  as  those  created  by  law.  Such  a 
jointure  will  bind  an  infant  in  the  same  way  as  a  legal  one, 
if  it  is  settled  upon  her  before  marriage  by  the  consent  and 

1  Hastings  v.  Dickinson,  7  Mass.  153  ;  2  Crabb,  Real  Prop.  217  ;  2  Flint,  Real 
Prop.  199. 

2  1  Cruise,  Dig.  201 ;  3  Dane,  Abr.  123.  In  which  respect  she  has  not  the 
rights  of  a  dowress. 

8  1  Atkinson,  Conv.  272.  *  1  Cruise,  Dig.  209.  »  Co.  Lit.  36  b. 

6  4  Kent,  Com.  56,  n.  8th  ed.  ;  Wnis.  Real  Prop.  193,  Am.  note  ;  Andrews  v. 
Andrews,  8  Conn.  79.     See  also  Craig  v.  Walthall,  14  Gratt.  518. 

■J  Hastings  v.  Dickinson,  7  Mass.  153;  Gibson  v.  Gibson,  15  Mass.  110.  See 
Mass.  Gen.  Stat.  c.  90,  §  9. 


CH.  VIII.]  JOINTURE.  319 

approbation  of  her  parents  or  guardian.  And  a  provision  in 
lieu  of  dower  for  an  infant,  if  so  assented  to  before  marriage, 
is  an  equitable  bar  to  dower,  if  it  is  as  certain  a  provision  as 
her  dower  would  be.^ 

17.  If  the  woman  be  of  age  at  her  marriage,  there  must  be 
an  express  agreement  on  her  part  to  accept  the  provision 
made  in  lieu  of  dower  in  order  to  bar  her  right  thereto.  She 
may,  if  she  pleases,  take  a  chance  in  satisfaction  of  dower. 
The  difference  between  this  equitable  and  a  legal  jointure  is, 
that  the  latter  is  not  a  contract  for  a  provision,  but  a  provision 
made  ;  while  the  former  proceeds  on  the  idea  of  a  contract 
on  the  part  of  the  wife  to  accept  a  certain  provision  in  lieu 
of  dower.2  If  the  provision  for  the  infant  be  precarious  or 
uncertain,  she  will  not  be  bound  by  it  as  a  bar  to  dower,  and 
has  her  election  to  take  it  or  dower.^  And  to  bar  a  widow 
by  a  jointure  of  a  chattel  interest,  there  must  be  an  express 
assent  to  receive  it,  though  she  could  not  have  both  that  and 
dower.*  The  above  is  put  to  illustrate  the  proposition  that, 
if  agreed  to,  any  provision,  whether  a  chattel  interest  inland 
or  a  pecuniary  obligation,  will  bar  a  claim  for  dower  in  equity. 
And  even  "  a  chance  "  in  satisfaction  may  be  sufficient,  if  so 
understood  by  her,  according  to  some  authorities,  though  ear- 
lier ones  insist  that  the  provision  she  agrees  to  accept, 
though  it  may  be  inadequate,  must  be  an  *  available  [*268] 
one.^  The  great  case  of  Drury  v.  Drury  held  an  an 
nuity  of  <£600,  although  not  charged  upon  land  and  agreed 
to  by  an  infant  before  marriage,  a  good  bar  of  dower.^     But 

1  McCartee  v.  Teller,  2  Paige,  Ch.  559  ;  Tud.  Cas.  49 ;  Cobert  v.  Cobert,  1 
Sim.  &  Stu.  612;  1  Atkinson,  Conv.  267  ;  Drury  ;;.  Drury,  2  Eden,  60;  Caruth- 
ers  V.  Caruthers,  4  Bro.  C.  C.  513;  Clancy,  Rights  of  Worn.  221 ;  4  Dane,  Abr. 
086. 

2  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  507,  n.  512,  513  ;  Dyke  v.  Kendall,  2 
DeG.,  M.  &  G.  209  ;  Tud.  Cas.  49  ;  2  Sugd.  Vend.  219  ;  Clancy,  Rights  of  Worn. 
221. 

3  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  513 ;  Clancy,  Rights  of  Worn.  221 ; 
Smith  V.  Smith,  5  Ves.  189  ;  Tud.  Cas.  49  ;  2  Sugd.  Vend.  220. 

•t  Ciiarles  v.  Andrews,  2  Eq.  Cas.  Abr.  388. 

6  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  513,  n. ;  Power  v.  Shell,  1  Molloy,  Rep. 
296;  Chit.  Dig.  Jointure,  M.  §  11 ;  2  Sugd.  Vend.  219  ;  Dyke  v.  Kendall,  2  DeG., 
M.  &  G.  209 ;  Tud.  Cas.  49  ;  1  Roper,  Hus.  &  Wife,  480 ;  Clancy.  Rights  of  Worn 
223. 

6  Drury  v.  Drury,  2  Eden,  39-75. 


320  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

wliere  the  ante-nuptial  contract  only  secured  to  her  what 
then  belonged  to  her,  but  contained  no  recital  that  it  was  in 
lieu  of  dower,  it  was  held  that  it  was  no  bar  to  her  claim  for 
dower.i 

18.  If  the  equitable  jointure  be  made  after  marriage,  the 
wife  may  elect  as  in  case  of  legal  jointures,  either  to  take  that 
or  her  dower.^  And  the  intention  to  bar  dower  by  such  pro- 
vision must  also  appear,  in  order  to  have  that  effect,  though 
the  form  of  expressing  this  is  immaterial,  provided  such  in- 
tention can  be  shown  by  evidence  required  by  the  Statute  of 
Frauds,  and  not  by  parol.^  But  this  intention  may  be  apparent 
from  the  nature  of  the  provision,  and  the  inconsistency  of 
taking  both  that  and  dower,  and  so  may  sufficiently  appear.* 
But  if  it  only  satisfies  a  part  of  the  widow's  dower,  she  will 
not  be  bound  by  it,  but  may  give  it  up  and  claim  her  dower.^ 

19.  The  way  in  which  equitable  jointures  are  rendered 
effective  to  bar  widows'  claims  of  dower,  at  law,  is,  that  where 
they  are  satisfactorily  shown  to  have  been  made,  the  courts  of 
equity  will  restrain  the  claimants  from  prosecuting  a  suit  at 
law  to  enforce  their  common-law  right.^ 

20.  The  effect  of  being  evicted  of  an  equitable  jointure  by 
a  superior  title,  seems  to  be  the  same  as  in  the  case  of  a  legal 
one,  giving  the  widow  a  right  to  claim  her  dower  in  whole  or 
'pro  tanto,  as  the  case  may  be,  out  of  her  husband's  other 
estate."  And  an  alienation,  by  the  husband,  of  the  fund  out 
of  which  the  jointure  was  to  arise,  will  be  deemed  an  eviction 

of  the  same,  and  let  her  in  for  her  dower. ^ 
[*269]       *21.  In  accordance  with  this  doctrine,  where  a  con- 
tract before  marriage  fixed  the  share  the  wife  was  to 
take,  and  excluded  her  from  all  other  parts  of  the  estate,  and 

1  Swaine  v.  Ferine,  5  Johns.  Ch.  489.  See  Woods  v.  Shurley,  Cro.  Jac.  490 ; 
4  Dane,  Abr.  685. 

'i  1  Roper,  Hus.  &  Wife,  482;  Swaine  v.  Ferine,  5  Johns.  Ch.  482. 

3  Clancy,  Rights  of  Worn.  228  ;  1  Roper,  Hus.  &  Wife,  483  ;  Tenny  v.  Tenny, 
3  Atk.  8 ;  Couch  i'.  Stratton,  4  Ves.  39L 

4  Sugd.  Vend.  219;  Clancy,  Rights  of  Worn.  229;  Tud.  Cas.  50. 

6  1  Roper,  Hus.  &  Wife,  483.  "  Wms.  Real  Frop.  193. 

•>  Buckinghamshire  v.  Drury,  2  Eden,  68  ;  Beard  v.  Nutthall,  1  Vern.  427. 
8  2  Sugd.  Vend.  220,  citing  Drury  v.  Drury,  2  Eden,  60 ;  Fower  v.  Shell,  1 
iVToUoy,  Rep.  296. 


CH.  VIII.]  JOINTURE.  321 

this  contract  was  given  up  to  the  husband  during  coverture 
and  by  him  destroyed,  it  was  held  that  she  was  remitted  to 
her  riglit  of  dower.^  So  where  a  wife  before  marriage  agreed 
to  claim  no  part  of  her  husband's  then  estate,  she  was  held  to 
be  remitted  to  her  right  of  dower  by  his  abandoning  her  and 
violating  his  duties  of  husband  towards  her.^ 

22.  When  the  law  as  to  jointure  in  the  United  States  is 
considered,  it  is  understood  to  be,  except  where  it  has  been 
modified  by  statute,  substantially  the  same  as  that  of  Eng- 
land before  the  late  Dower  Act.  It  was  held  in  a  case  above 
cited  in  Massachusetts,  that  though  a  widow  would  not  be 
barred  of  her  dower  by  an  ante-nuptial  covenant  not  to  claim 
it,  yet  if  she  entered  into  such  a  covenant,  for  a  valuable 
consideration,  which  had  not  failed,  if  she  recovered  her 
dower,  she  would  be  liable  upon  her  covenants  in  a  sum  in 
damages  equal  to  the  value  of  her  dower.^  After  that  de- 
cision, there  was  a  statute  providing  for  barring  dower  by  a 
jointure  in  lands  or  money  made  before  marriage,  the  wife,  if 
of  age,  expressing  her  assent  by  becoming  party  to  the  instru- 
ment, or,  if  under  age,  executing  it  with  her  father  or  guar- 
dia.n.*  And  if  deprived  of  such  provision,  she  might  be 
endowed  as  at  common  law.  And  if  it  is  made  before  mar- 
riage, without  such  assent,  or  made  after  marriage,  she  may 
elect,  within  six  months  after  husband's  death,  to  accept  it  in 
bar,  or  claim  her  dower.^  In  Connecticut,  any  provision  which 
a  wife,  competent  to  make  a  contract,  accepts  before  marriage, 
in  lieu  of  dower,  will  be  a  good  equitable  jointure.^  In 
Maine,  not  only  must  the  jointure,  in  order  to  bar  dower,  be  a 
freehold  provision,  but  it  must  be  made  and  assented  to  be- 
fore marriage.'^  If  composed  partly  of  a  freehold  and  partly  of 
an  annuity  not  secured  on  real  estate,  it  will  not  be  a  legal 
jointure.  Nor  will  a  widoAV  be  barred  from  recovering 
dower  by  her  covenants  with  her  husband  before  *mar-  [*270] 

1  Gangwere's  Estate,  14  Peiin.  St.  417.  2  Spiva  v.  Jeter,  9  Ricli.  Eq.  434. 

8  Gibson  v.  Gibson,  15  Mass.  106. 

*  Gen.  Stat.  c.  90,  §  10  ;  Vincent  v.  Spooner,  2  Gush.  473. 

5  Gen.  Stat.  c.  90,  §  11 ;  Thompson  v.  McGaw,  1  Met.  60.  See  also  Stat.  R.  I. 
1844,  p.  188;  and  compilation,  1854,  p.  383,  §  21  ;  Chapin  v.  Hill,  1  R.  I.  450. 

6  Andrews  i'.  Andrews,  8  Conn.  79. 
"'  Vance  o.  Vance,  21  Me.  364. 

VOL.    I.  21 


322  LAW   OF   EEAL   PROPERTY.  [BOOK   I. 

riage.^  And  yet  in  several,  if  not  all  the  States,  the  same 
rule  as  to  equitable  jointures  and  their  effect  is  applied, 
as  that  which  prevailed  in  equity  in  England.  In  New  York, 
the  distinction  between  legal  and  equitable  bars  of  dower  is 
abolished,  and  if  the  wife  is  a  minor,  in  order  to  bar  her  claim 
the  provision  must  be  to  take  effect  immediately  on  the  death 
of  the  husband,  and  must  be  to  continue  for  life,  and  must  be 
reasonable  and  competent,  having  reference  to  the  circum- 
stances and  situation  of  the  parties,  and  in  view  of  the  hus- 
band's estate.  The  provision,  moreover,  must  be  assented  to 
by  the  intended  wife  if  of  age,  or  if  a  minor,  by  herself  and 
father,  or  guardian.^  In  Alabama,  the  common  law  prevails 
as  to  a  wife's  being  barred  or  not  by  a  jointure  settled  upon  her. 
Yet  a  court  of  equity  will  enforce  an  ante-nuptial  contract  if 
fairly  entered  into,  by  decreeing  a  specific  performance  of 
such  agreement.^  And  where,  by  the  ante-nuptial  agree- 
ment, she  relinquished  all  right  of  dower,  but  her  husband 
only  settled  upon  her  her  own  estate,  it  was  held  not  to  bar  her 
of  claiming  dower  at  law.  A  jointure,  to  be  a  bar,  must  be 
something  conceded  to  the  wife.*  But  a  bona  fide  ante-nuptial 
arrangement,  entered  into  with  full  knowledge,  and  mak- 
ing reasonable  provision  for  the  wife,  may  bar  her  as  an  equi- 
table jointure.^  And  in  Maryland  an  infant  may  bar  herself 
of  dower  by  a  contract  entered  into  before  marriage.^  In 
Missouri,  a  provision,  whether  made  before  or  after  marriage, 
does  not  operate  as  a  jointure,  unless  expressed  to  be  in  bar 
of  dower.'''  And  it  may  be  added,  that  the  mode  of  barring- 
dower  by  ante-nuptial  settlements,  so  common  in  England 
before  the  late  Dower  Act,  comes  more  properly  under  another 
head  of  the  law  of  real  estate.* 

*NoTE.  —  Other  cases  might  be  cited  from  the  reports  of  these  and  other 
States  upon  this  subject,  as  well  as  the  various  statutes  which  have  been  adopted 

1  Vance  v.  Vance,  21  Me.  364. 

2  McCartee  v.  Teller,  2  Paige,  Ch.  511 ;  Lalor's  Real  Est.  274,  275. 
8  Gould  V.  Womack,  2  Ala.  83. 

*  Blackraon  v.  Blackmon,  16  Ala.  638.     See  also  Whitehead  v.  Middleton,  2 
How.  (Miss.)  692;  contra,  Gelzer  v.  Gelzer,  1  Bailey,  Ch.  (S.  C.)  387. 
6  Stilley  V.  Folger,  14  Ohio,  610. 

6  Levering  v.  Heighe,  2  Md.  Ch.  81.     See  1  Bright,  Hus.  &  Wife,  461. 
■J  Perry  v.  Perryman,  19  Mo.  469.     See  1  Bright,  Hus.  &  Wife,  449. 


CH.  VIII.]  JOINTURE.  323 

*23.  In  muny  cases  a  widow  is  barred  of  her  dower  [*271] 
by  a  testamentary  provision,  made  for  her  by  her  hus- 
band, which,  though  not  properly  a  jointure,  operates  like 
one,  if  she  accepts  of  it,  which  she  may  do  at  her  election,  or 
may  decline  and  claim  her  dower.  And  there  are  numerous 
cases  where  she  may  claim  both  the  provision  and  dower. 
Where  by  the  terms  of  the  husband's  will  she  cannot  take 
both,  she  is  at  liberty  to  elect  which  she  will  take.  And  this 
right  of  election  is  a  personal  one  and  is  not  transmissible  by 
descent.!  And  the  intention  of  the  testator  in  this  respect 
must  be  gathered  from  the  will,  and  is  not  to  be  proved  by 
parol.2  Thus,  for  instance,  if  the  devise  be  in  terms  in  lieu 
of  doiver,  she  may  take  either  but  not  both.^  But  though  a 
pecuniary  provision,  if  made  in  lieu  of  dower,  and  the  same 
is  accepted,  it  will  bar  her  claim  for  dower.'*  And  when,  under 
the  exercise  of  the  right  of  election,  she  accepts  a  provision 
bv  will  in  the  place  of  dower,  she  takes  it  as  a  purchaser,  and 
holds  it  in  preference  to  other  legatees.^  So  where  the  devise 
is  wholly  inconsistent  with  the  claim  of  dower,  or  where  it 
would  prevent  the  whole  will  from  taking  effect  if  dower  is 
claimed.^  One  or  two  cases  may  be  referred  to  as  illustra- 
tive of  the  foregoing  propositions.     In  one  of  these  the  pro- 

by  different  States.  But  it  is  believed  they  do  not  materially  vary  from  the 
principles  above  stated,  and  the  comparative  importance  of  the  subject  hardly 
seems  to  justify  occupying  the  space  which  would  be  necessary  to  refer  to  them 
in  detail.  The  reader  is  referred  to  1  Greenl  Cruise,  200,  note,  and  4  Kent, 
Com.  56,  note. 

1  Welch  V.  Anderson,  28  Mo.  293  ;  Bubier  v.  Roberts,  49  Me.  463. 

2  Hall  V.  Hall,  8  Rich.  (S.  C.)  407  ;  Stark  v.  Hunton,  Saxton  (N.  J.),  216; 
Whilden  i'.  Whilden,  Riley,  Ch.  (S.  C.)  205;  Herbert  v.  Wren,  7  Cranch,  370, 
378  ;  Higginbotham  v.  Cornwell,  8  Gratt.  83. 

3  Van  Orden  v.  Van  Orden,  10  Johns.  30;  2  Crabb,  Real  Prop.  177  ;  Cliapin 
V.  Hill,  1  R.  I.  446 ;  Raines  v.  Corbin,  24  Ga.  185 ;  Pemberton  v.  Pemberton,  29 
Mo.  408;  4  Dane,  Abr.  685  ;  7  Id.  426. 

4  Trueman  v.  Waters,  4  Dane,  Abr.  676. 

5  Hubbard  v.  Hubbard,  6  Met.  50 ;  Pollard  v.  Pollard,  1  Allen,  490. 

6  Incledon  v.  Northcote,  3  Atk.  437  ;  Kennedy  v.  Nedrow,  1  Dall.  418 ;  Her- 
bert V.  Wren,  7  Cranch,  370 ;  Allen  r.  Pray,  3  Fairf.  138  ;  Duncan  v.  Duncan,  2 
Yeates,  302  ;  Creacraf t  v.  Wions,  Addis.  350 ;  White  v.  White,  1  Harris.  202 ; 
Green  v.  Green,  7  Porter  (Ala.),  19;  Adsit  v.  Adsit,  2  Johns.  Ch.  448;  Sanford 
V.  Jackson,  10  Paige,  266. 


324  LAW    OF    REAL    PROPERTY.  [BOOK    L 

vision  b}'-  will  for  the  widow  was  the  use  of  all  the  husband's 
estate  during  her  life,  with  a  remainder  over.  It  was  held 
that  she  might  claim  one  third  as  dower,  and  the  other  two 
thirds  by  devise,  and  that  there  was  nothing  inconsistent  in 
these  claims,  nor  would  her  taking  the  whole,  bar  her  claim 
to  land  conveyed  by  the  husband  in  his  lifetime.^  To  pre- 
vent a  widow  claiming  both  the  provision  in  a  will  and  h6r 
dower,  she  must,  by  enforcing  her  claim  of  dower,  defeat  or 
interrupt  or  disappoint  some  provision  of  the  will.^ 

24.  Where  a  widow  accepts  a  testamentarj^  provision 
given  her  in  lieu  of  dower,  it  cuts  off  her  claim  to  lands 
aliened  b}'^  the  husband  in  his  lifetime,  as  well  as  to  those 
acquired  after  the  making  of  the  husband's  will,  and  consti- 
tutes a  legal  as  well  as  an  equitable  bar.^  In  analogy  to  the 
effect  produced  by  the  election  of  a  testamentary  provision 
in  lieu  of  dower,  it  has  been  held  that  if  the  husband,  during 
coverture,  conveys  a  portion  of  his  land  in  which  the  wife  does 
not  join,  and  then  dies  leaving  no  children,  in  which  case  the 
law  gave  her  an  election  to  take  one  half  of  his  property  or 
dower  out  of  his  estate,  if  she  elects  to  take  the  half,  she 
would  thereby  bar  her  claim  of  dower  out  of  the  premises 
conveyed  by  her  husband  in  his  lifetime.*  But  in  Penn- 
sylvania, under  the  statute  of  that  State,  she  would 

[*272]  not  by  such  acceptance  be  *  barred  of  her  dower  in 
lands  aliened  by  the  husband  before  making  the  will.* 

25.  Unless  the  intention  to  bar  the  widow's  dower  is  clear 
in  case  of  testamentary  provision  for  her,  she  will  be  held 
entitled  to  both,  where  there  is  no  statute  provision  to  the 
contrary.^     In  Massachusetts,  under  the  statute,  a  provision 

1  Lewis  ';.  Smith,  5  Selden,  502.     See  Bull  v.  Church,  5  Hill,  206. 

2  Corriell  v.  Ham,  2  Iowa,  558. 

3  Chapin  v.  Hill,  1  R.  I.  446 ;  Allen  v.  Pray,  3  Fairf.  138 ;  Kennedy  v.  Mills, 
13  Wend.  553;  Evans  v.  Pierson,  9  Rich.  9. 

*  Hornsey  v.  Casey,  21  Mo.  545 ;  Same  v.  Same,  23  Mo.  371. 

5  Borland  v.  Nichols,  12  Penn.  St.  38.  The  same  rule  is  adopted  in  Virginia. 
Higginbotham  v.  Cornwell,  8  Gratt.  83. 

*>  Herbert  v.  Wren,  7  Cranch,  370 ;  Higginbotham  v.  Cornwell,  8  Gratt.  83  ; 
Kennedy  r.  Nedrow,  1  Dall.  418;  Smith  v.  Kniskern,  4  Johns.  Ch.  10;  Adsit  i'. 
Adsit,2  Johns,  Ch.  448;  Walker's  Introduct.  325;  Hilliard  v.  Binford,  10  Ala. 
987;  Evans  v.  Webb,  1  Yeates,  424;  Pickett  v.  Peay,  3  Brev.  545;  Church  v. 
Bull,  2  Denio,  430  ;  Ostrander  v.  Spickard,  8  Blackf.  227  ;  Tooke  v.  Hardeman,  7 


CH.  VIII.]  JOINTURE.  325 

by  will  in  favor  of  a  wife  will  be  presumed  to  be  in  lieu  of 
her  dower,  unless  the  contrary  appear  to  be  the  intention 
of  the  will.^  So  in  Pennsylvania,  Indiana,  Maryland,  Ken- 
tucky, Alabama,  North  Carolina,  New  Jersey,  New  York, 
Kansas,  Maine,  and  Arkansas.* 

26.  So  in  many  of  the  States  she  must  signify  her  election 
of  dower  within  some  certain  period  prescribed  by  statute,  or 
she  will  be  deemed  to  have  elected  to  accept  the  provision  in 
bar  of  it,  unless  the  will  clearly  gives  her  both.^  In  the  fol- 
lowing States  this  election  must  be  made  within  six  months 
after  the  testator's  death,  or  it  is  construed  an  acceptance  of 
the  provision  and  bar  of  dower.  Massachasetts,^  Maine,* 
Missouri,^  New  Jersey,^  North  Carolina,"  Maryland,^ 
Tennessee,^   *  Mississippi. ^"^     Where  the  widow  dies  [*273] 

*  Note.  — In  Kansas,  if  a  husband  die  witliout  any  descendants  living  capable 
of  inlieriting,  tlie  widow  lias  her  election,  to  take  dower,  or  to  take  all  tlie  real 
estate  of  her  husband,  subject  to  debts.  If  she  does  not  elect  within  six  months, 
she  is  endowed.     Compiled  Laws,  1862,  c.  83,  §§  4,  6,  7. 

Ga.  20 ;  Norris  v.  Clark,  2  Stockt.  51 ;  Van  Arsdale  v.  Van  Arsdale,  2  Dutch. 
404 ;  Mills  v.  Mills,  28  Barb.  454  ;  Clark  v.  Griffith,  4  Iowa,  405  ;  Yancy  v.  Smith, 
2  Met.  (Ky.)  408;  Dodge  v.  Dodge,  31  Barb.  413. 

1  Eeed  v.  Dickerman,  12  Pick.  146.  See  also  Herbert  i».  Wren,  7  Cranch,  378  ; 
Stat.  Fenn.  1833,  §  11 ;  Smith  i'.  Baldwin,  2  Ind.  404 ;  Collins  v.  Carman,  5  Md. 
504  ;  McCans  v.  Board,  1  Dana,  40 ;  Hilliard  v.  Binford,  10  Ala.  987  ;  Rev.  Stat. 
N.  C.  1837,  p.  612 ;  N.  J.  Rev.  Laws,  677  ;  Thompson  v.  Egbert,  2  Harris.  459; 
Peun.  Stat.  Pardon's  Dig.  1861,  p.  362;  Md.  Code,  1860,  p.  682;  Ark.  Stats. 
1858,  c.  60,  §  24 ;  Kansas,  Comp.  Laws,  1862,  c.  83,  §  10 ;  Bubier  v.  Roberts,  49 
Me.  464. 

2  N.  Y.  3  Rev.  Stat.  5th  ed.  1859,  p.  32,  §§  11-14  ;  Kennedy  v.  Mills,  13  Wend. 
556;  Walker's  Introduct.  325;  Minn.  Comp.  Stats.  1859,  c.  36,  §  18;  Oregon, 
Stats.  1855,  p.  407.  In  Ohio,  she,  by  neglecting  to  elect  tiie  provision  within  six 
months,  is  held  to  elect  dower.  In  Alabama,  the  time  is  one  year  from  probate 
of  the  will.  Code,  1867,  §  1928.  In  Nebraska,  one  year  from  husband's  death, 
Rev.  Stat.  1865,  p.  58.  So  in  Virginia,  Acts  1866.  In  Kansas,  one  year  from 
citation  by  the  probate  court.  Laws,  1865. 

3  Gen.  Stat.  c.  90,  §  11  ;  Pratt  v.  Felton,  4  Cush.  174. 
*  Hastings  v.  Clifford,  32  Me.  132. 

5  Kemp  V.  Holland,  10  Mo.  255.  But  now  by  statute  in  twelve  months  ;  Gen. 
Stat.  1866,  c.  130,  §§  15,  16. 

6  Thompson  v.  Egbert,  2  Harris.  459. 

^  Pettijolm  v.  Beasley,  1  Dev.  &  Bat.  254;  Rev.  Stat.  N.  C.  1837,  p.  612. 

8  Collins  V.  Carman,  5  Md.  530.  ^  Malone  v.  Majors,  8  Humph.  577. 

1"  Ex  parte  Moore,  7  How.  (Miss.)  665.  In  Alabama,  tlie  election  must  bo 
made,  if  at  all,  in  a  reasonable  time  ;  Hilliard  v.  Binford,  10  Ala.  996.  In  Ver- 
mont, the  time  is  eight  months  ;  Smith  v.  Smith,  20  Vt.  270.     In  New  York,  the 


32G  LAW   OP   EEAL   PROPERTY.  [BOOK  I. 

within  the  period  given  by  the  statute,  in  which  to  make 
election,  without  having  made  it,  the  hiw  will  presume  the 
election  to  be  that  which  is  most  favorable  for  her.^  Though 
in  Maryland  and  North  Carolina  it  has  been  held,  if  she  so 
die,  her  representatives  will  be  bound  by  the  provisions  of  the 
husband's  will,  as  the  right  of  election  is  a  personal  one  which 
no  one  but  herself  can  exercise.^ 

27.  Besides  this  general  power  of  election  between  a  devise 
and  dower,  the  widow  often  may  elect  in  what  capacity  she 
shall  take  what  is  devised  to  her,  where  it  is  left  equivocal 
whether  as  dowress  or  devisee.  And  this  becomes  an  impor- 
tant distinction  where  the  husband  leaves  creditors.^  Thus 
in  one  case  a  husband  mortgaged  his  estate,  his  wife  not  join- 
ing in  the  deed.  By  his  will  he  devised  her  the  whole  of  his 
estate  with  remainder  over.  After  his  death  the  mortgagee 
foreclosed  his  mortgage,  making  the  widow  party  to  the  suit. 
But  it  was  held,  she  still  might  claim  dower  in  one  third  of 
the  premises,  and  two  thirds  as  devisee,  since  the  judgment 
only  bound  those  who  claimed  under  the  mortgagor  as  mort- 
gagor, and  her  right  as  dowress  had  attached  before  the 
mortgage,  and  was  paramount  to  that.* 

28.  An  election  in  these  cases  may  be  evidenced  by  acts  in 
pais,  such  as  entering  upon  the  land  devised,  as  well  as  by 
matter  of  record,  where  it  is  done  with  a  full  knowledge  of 
the  facts  in  respect  to  the  provision.^     But  ordinarily,  wher- 

election  must  be  in  one  year ;  Rev.  Stat.  5th  ed.  pt.  2,  ch.  1,  tit.  3,  §  14 ;  Willard 
R.  E.  69.  In  Pennsylvania,  the  election  must  be  made  within  twelve  months 
from  tlie  death  of  the  testator ;  Purdon's  Dig.  1861,  p.  362.  In  Kansas,  within 
twelve  months  from  proof  of  the  will ;  Stat.  Comp.  1862,  c.  183,  §  11.  In 
Arkansas,  eighteen  months.  In  Vermont,  eight  months  ;  Rev.  Stat.  1863,  e.  55, 
§§  -1-6  ;  but  the  probate  court  may  now  extend  the  time,  Acts,  1864.  In  New- 
York,  Wisconsin,  Kentucky,  Illinois,  Minnesota,  and  Oregon,  the  election  must 
be  made  within  one  year ;  N.  Y.  Rev.  Stat.  5th  ed.  1859,  p.  32,  §§  11-14 ;  Wis. 
Rev.  Stat.  1858,  c.  89,  §§  14-19;  Ky.  Rev.  Stat.  1860,  c.  47,  art.  4,  §  7 ;  111. 
Comp.  Stat.  18.58,  vol.  1,  p.  152  ;  Minn.  Stat.  Comp.  1858,  c.  36,  §§  14-19 ;  Oregon 
Stat.  18.55,  p.  407. 

i  Merrill  v.  Emery,  10  Pick.  507. 

2  Boone  v.  Boone,  3  Har.  &  McH.  93  ;  Collins  v.  Carman,  5  Md.  503  ;  Lewis 
V.  Lewis,  7  Ired.  72.    So  by  statute  in  Pennsylvania;  Acts,  1865. 

3  Mitchell  V.  Mitchell,  8  Ala.  414.  *  Lewis  v.  Smith,  5  Seld.  512. 
5  Delay  v.  Vinal,  1  Met.  57  ;  Ambler  v.  Norton,  4  Hen.  &  M.  23  ;  Tooke  v. 

Hardeman,  7  Ga.  20, 


CH.  VIII.]  JOINTURE.  327 

ever  a  widow  fairly  and  understandingly  has  elected  to  take 
the  provision  of  a  will  instead  of  dower,  she  cannot  after- 
wards revoke  it  and  claim  dower.^ 

*29.  And  yet  it  has  been  held  that  if  she  has  been  [*274] 
substantially  deprived  of  such  provision,  she  is  remit- 
ted to  her  right  of  dower.^  And  if  it  turns  out  that  nothing 
passes  by  the  devise,  she  may  claim  her  dower,  though  she 
may  once  have  elected  to  take  the  provision  of  the  will.^  If 
no  provision  is  made  for  her  by  the  will,  she  need  not  dissent 
from  the  will  in  order  to  claim  her  dower.* 

1  Davison  v.  Davison,  3  Green  (N.  J.),  235. 

2  Hastings  v.  Clifford,  32  Me.  132 ;  Thompson  v.  Egbert,  2  Harris,  459.  See 
also  Thomas  v.  Wood,  1  Md.  Ch.  296. 

3  Chew  V.  Parmer's  Bank,  9  Gill,  361. 

4  Green  v.  Green,  7  Porter  (Ala.),  19;  Martin  v.  Martin,  22  Ala.  86.  For 
further  references  upon  the  subject  of  election,  by  a  widow  in  case  of  a  will, 
&c.,  the  reader  is  referred  to  1  White  &  Tud.  Cas.  Am.  ed.  284-289,  and  n. 


328  LAW  OF  REAL  PROPERTY.  [bOOK  I. 


CHAPTER  IX. 

ESTATES  BY  MARRLiGE. 

Sect.  1.     Estates  during  Coverture. 
Sect.  2.    Homestead  Estates 

SECTION  I. 
ESTATES  DURING  COVERTURE. 

1,  2.    Nature  of  estates  of  husband  and  wife. 

3.  Husband  and  wife  have  a  joint  seisin  of  her  land. 

4.  Equity  treats  the  wife  as  sole,  as  to  lands. 

5,  6.  When  she  is  restrained  from  disposing  of  her  estate. 

7.  Rule  in  United  States  as  to  such  restrictions. 

8,  9.  When  husband  and  wife  have  entireties. 

10,  11.  When  lands  acquired  are  owned  by  tliem  severally. 

12.  Suits  by  husband  in  respect  to  the  wife's  lands. 

13,  14.  When  husband  and  wife  can  convey  to  each  other. 

15.  Effect  of  husband's  death  on  her  estate. 

16.  When  wife  may  be  grantee  of  lands. 

17.  When  she  may  disavow  conveyance  to  her. 
18,  19.  How  husband  and  wife  may  convey  lands. 

20.  Husband  may  not  recover  for  improvements. 

21.  Rights,  wlien  wife  dies  without  having  had  issue. 

22.  Husband,  when  and  how  liable  for  waste. 

Note.     United  States  statutes  as  to  marital  rights  in  lands. 

1.  It  will  be  recollected  that  the  interest  of  a  tenant  by 
curtesy,  or  of  a  dowress,  relates  only  to  the  period  subsequent 
to  the  determination  of  the  coverture. 

There  are  rights  which  husbands  and  wives  respectively 
have,  as  such,  in  lands,  and  which  remain  to  be  considered  as 
not  coming  under  the  head  of  curtesy  or  dower.*  These  rights 
were  comparatively  simple  and  easily  defined  as  they  existed 

*  Note.  —  It  is  not  intended,  in  this  chapter,  to  treat  of  that  joint  ownership 
of  lands  by  husband  and  wife,  known  as  estates  by  entirety.    For  tliese,  see  c.  13. 


CH.  IX.  §  1.]  ESTATES   BY   MAERIAGE.  329 

at  common  law.    But  under  the  system  of  equity,  and 
especially  *  under  the  modifications  of  modern  legis-   [*276  j 
lation,  these  rights  have  become  not  a  little  complex 
and  variant  in  the  different  States. 

2.  By  the  common  law,  for  instance,  the  rights  of  the  wife 
to  her  property  became  for  the  time  being  merged  by  the 
coverture.  And  if  this  property  consists  of  lands,  the  hus- 
band alone  is  entitled  to  the  rents  and  profits  thereof,^  subject 
however  to  be  divested  by  a  divorce  a  vinculo.'^  And  if  rents 
are  due  when  the  husband  dies,  they  go  to  his  personal  repre- 
sentatives, and  not  to  the  wife  as  survivor.^  Whereas,  in 
many  of  the  United  States,  as  will  be  seen,  the  wife  may 
hold,  manage,  and  convey  her  lands  like  a  feme  sole.  The 
interest  which  a  husband  has,  at  common  law,  in  his  wife's 
lands,  is  regarded  as  a  freehold,  since  it  is  for  an  uncertain 
period  which  may  continue  during  the  term  of  his  life.*  But 
under  the  present  statutes  of  Massachusetts  relating  to  mar- 
ried women,  the  husband  has  no  freehold  in  his  wife's  land. 
And  the  right  of  possession  remains  in  her  notwithstanding 
his  deed  of  the  same  to  another.  His  deed  would  only  oper- 
ate as  an  estoppel  to  his  claiming  curtesy  against  his  grantee.^ 
But  if  the  interest  of  the  wife  be  a  reversionary  one,  sub- 
ject to  a  prior  freehold,  the  husband  has  no  control  over  it, 
and  a  conveyance  of  it  by  him  would  be  void.  He  must  have 
a  present  right  of  seisin  or  possession  to  exercise  control  over 
it.^  He  might,  therefore,  make  himself  a  tenant  to  the  jprce- 
cipe,  or  convey  a  freehold  in  such  lands  to  another.'^  Thus, 
where  an  indenture  intended  to  be  signed  by  husband  and 
wife,  releasing  lands  belonging  to  her,  was  signed  by  the  hus- 
band only,  it  was  held  to  operate  as  a  release  during  their 
joint  lives. ^ 

1  1  Bl.  Com.  442 ;  Wms.  Keal  Prop.  182. 

2  Burt  V.  Hurlburt,  16  Vt.  292 ;  Oldham  v.  Henderson,  5  Dana,  257. 
8  Shaw  V.  Partridge,  17  Vt.  626. 

4  1  Roper,   Hus.  &  Wife,  3 ;  Melvin  v.  Proprietors,  16  Pick.  165 ;  Babb  v. 
Perley,  1  Greenl.  7 ;  Co.  Lit.  351  a. 
6  Walsh  V.  Young,  110  Mass.  396. 

6  Shores  v.  Carley,  8  Allen,  425. 

7  Co.  Lit.  326  a,  n.  280 ;  McClain  v.  Gregg,  2  A.  K.  Marshall,  454 ;  Trask  v. 
Patterson,  29  Me.  499 ;  Mitchell  v.  Sevier,  9  Humph.  146 ;  Clancy,  Rights  of 
Worn.  161. 

8  Robertson  v.  Norris,  11  Q.  B.  91G. 


330  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

3.  Still  the  husband,  in  such  case,  does  not  by  his  marriage 
acquire  a  sole  seisin.  The  seisin  is  regarded  as  a  joint  one, 
and  in  both.  Both  together  have  the  whole  estate,  and 
therefore,  in  law,  they  are  both  considered  as  seised  in  fee, 
and  must  so  state  their  title  in  pleading.^  *  And  until  the 
birth  of  a  child,  the  interest  of  the  husband  in  the  wife's  es- 
tate is  so  far  inchoate,  that,  if  the  wife  forfeited  her  inher- 
itance before  that  event  by  any  act  like  that  of  treason,  it 
defeated  the  interest  of  the  husband.^ 

4.  Equity  often  adopts  an  entirely  different  rule  from  that 
of  the  common  law  in  respect  to  a  wife's  separate  interest  in 
her  own  lands  during  coverture,  where  the  intention  of  the 
person  limiting  them  to  the  wife  was,  in  so  doing,  to  secure 
them  to  her  separate  use.  Nor  is  this  only  in  case  of  their 
being  expressly  given  to  trustees  for  her  benefit.     If,  by  the 

terms  of  the  limitation,  the  intention  to  exclude  the 
[*277]  marital  rights  of  *  the  husband  does  not  appear,  equity 

will  follow  the  law,  and  suffer  him  to  enjoy  the  rents 
and  profits,  even  where  the  lands  are  held  by  trustees. 
Whereas,  if  the  limitation  is  clearly  to  the  sole  and  separate 
use  of  the  wife,  equity  will,  if  no  trustee  is  appointed,  hold 
the  husband  himself  as  the  wife's  trustee,  and  compel  him  to 
execute  the  trust  by  giving  her  the  rents  and  profits,  to  be 
subject  to  her  sole  control.  And  this  is  said  to  be  the  rule 
in  equity  on  both  sides  of  the  Atlantic.^     No  particular  form 

*NoTE.  —  In  addition  to  what  has  already  been  said  {ante,  p.  *141)  upon  the 
subject,  the  authorities,  with  the  exception  of  the  case  tliere  cited  from  the  New 
Hampshire  Reports,  seem  to  be  uniform  that  the  seisin  of  husband  and  wife  of 
the  wife's  land  is  a  joint  one,  and  not  the  separate  seisin  of  either.  Co.  Lit. 
67  a  ;  1  Bright,  Hus.  &  Wife,  112  ;  Polyblank  v.  Hawliins,  Doug.  314  ;  Took  v. 
Glascock,  1  Saund.  R.  253,  n.  4 ;  Poole  v.  Longueville,  2  Saund.  *283,  n.  1 ;  Moore 
V.  Vinten,  12  Sim.  Ch.  164;  Hall  t;.  Sayre,  10  B.  Mon.  46  ;  Coe  v.  Wolcottville 
Mg.  Co.,  35  Conn.  178. 

1  Melvin  v.  Proprietors,  16  Pick.  165 ;  Cora.  Dig.  Baron  and  Feme,  E.  1 ;  Cat- 
lin  V.  Milner,  2  Lutw.  1421 ;  Clancy,  Rights  of  Worn.  161 ;  ante,  p.  *141. 

2  1  Bright,  Hus.  &  Wife,  113;  Co.  Lit.  351  a. 

3  Clancy,  Rights  of  Worn.  256,  257 ;  Hill,  Trust.  406 ;  Id.  420,  and  Rawle's 
n.  1  ;  1  White  &  Tud.  Lead.  Cas.  378 ;  Cochran  v.  O'Hern,  4  Watts  &  S.  95 ; 
Trenton  Bank  v.  Woodruff,  1  Green,  Ch.  117  ;  Knight  v.  Bell,  22  Ala.  198  ;  Long 
V.  White,  5  J.  J.  Marsh.  226 ;  Fears  v.  Brooks,  12  Ga.  195  ;  Blanchard  v.  Blood, 
2  Barb.  352;  Stuart  v.  Kissam,  3  Barb.  493;  Porter  u.  Bank  of  Rutland,  19  Vt. 
410. 


CH.  IX.  §  1.]  ESTATES   BY   MAREIAGE.  331 

of  expression  is  necessary  to  determine  whether  the  wife  alone 
or  husband  shall  have  the  benefit  of  the  trust  estate.  But 
the  intention  must  be  clear,  in  order  to  secure  such  separate 
use  to  the  wife,  and  to  exclude  the  marital  rights  of  the 
husband.^ 

5.  The  words  "  sole  "  and  "  separate,"  applied  to  the  nature 
of  the  intended  use  by  the  wife,  are  the  most  appropriate  to 
express  a  limitation  in  her  favor,  exclusive  of  any  anterest  or 
control  on  the  part  of  the  husband. ^ 

6.  One  of  the  great  objects  in  modern  marriage  settlements, 
is  to  secure  to  the  wife  a  share  of  the  property  free  from  the 
debts  and  control  of  her  husband.  And  this  is  often  so  done, 
that  in  order  to  protect  her  against  the  solicitations  or  influ- 
ence of  her  husband,  she  will  not  be  allowed  by  chancery  to 
assign  or  anticipate  her  income.^  But  while  no  particular 
form  of  words  is  required,  if  the  intention  is  clear  to  impose 
a  restriction  upon  the  wife  as  to  anticipation  or  assignment 
of  her  income,  she  may,  unless  thus  sj)ecially  restricted,  dis- 
pose of  it  by  sale,  contract,  or  mortgage,  as  if  she  were  a,  feme 
sole,  according  to  the  English  rules  in  equity.* 

*7.  The  courts  of  the  several  States  have  not  been  [*278] 
■uniform  in  applying  the  principle  of  restriction  to 
wives  in  respect  to  estates  held  in  trust  for  them.  In  some, 
the  English  rules  of  chancery  are  adopted;  in  others,  the 
wife  is  not  permitted  to  go  beyond  the  power  expressly  given 
by  the  deed  of  settlement.^ 

1  Welch  V.  Welch,  14  Ala.  76  ;  Fears  v.  Brooks,  12  Ga.  195;  Hill,  Trust.  406; 
1  White  &  Tud.  Lead.  Cas.  338 ;  Tritt ;;.  Colwell,  31  Penn.  St.  228. 

2  Goodrum  v.  Goodrum,  8  Ired.  Eq.  313 ;  1  White  &  Tud.  Lead.  Cas.  888. 
8  Wms.  Real  Prop.  183  ;  Coote,  Mortg.  104. 

4  Hill,  Trust.  421  ;  White  v.  Hulme,  1  Bro.  C.  C.  16. 

■^  Instead  of  illustrating  these  doctrines  by  the  citation  of  the  numerous  cases 
which  have  arisen  in  the  several  States,  the  reader  is  referred  for  tliese  cases  to 
Hill  on  Trust.  421,  note  by  Wharton  ;  Wms.  Real  Prop.  184,  note  by  Rawle,  or 
1  White  &  Tud.  Lead.  Cas.  370-378,  Hare  &  Wallace's  notes.  By  a  reference  to 
these  authorities,  it  will  appear  that  the  English  rule  is  substantially  adopted  in 
New  Jersey,  Connecticut,  Kentucky,  North  Carolina,  Alabama,  Georgia,  and 
Missouri.  In  Pennsylvania,  South  Carolina,  Mississippi,  Tennessee,  Virginia, 
Rhode  Island,  the  wife  is  governed  by  the  terms  expressly  prescribed  in  the 
deed,  &c.  In  New  York  the  matter  is  regulated  by  statute.  Lalor,  Real  Est. 
173,  174. 


S32  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

8.  In  consequence  of  the  theoretic  unity  and  entirety  of  the 
ownership  of  husband  and  wife  in  respect  to  their  interest  in 
lands,  they  cannot  take  by  purchase  in  moieties ;  and  where 
land  was  conveyed  to  them  to  hold  in  common  and  not  in 
joint  tenancy,  they  were  held  to  take  an  entirety  of  estate 
without  regard  to  the  intent.^ 

9.  They  are  not  properly  joint-tenants  of  such  lands,  since, 
though  there  is  a  right  of  survivorship,  neither  can  convey  so 
as  to  defeat  this  right  in  the  other.  Each  takes  an  entirety 
of  the  estate.^  In  Iowa,  a  conveyance  or  devise  to  husband 
and  wife  makes  them  tenants  in  common,  unless  the  instru- 
ment expressly  creates  a  joint  estate.^  But  in  Mississippi, 
where,  by  law,  joint-tenancies  are  converted  into  tenancies  in 
common,  conveyances  to  husbands  and  wives  create  tenancies 
by  entirety,  which  are  still  retained.^ 

10.  As  a  consequence  of  the  principle  that  husband  and 
wife  are  one  in  law,  if  lands  are  given  to  A  &  B,  husband 
and  wife,  and  C,  the  husband  and  wife  take  a  moiety,  and 

the  other  grantee  a  moiety.^     But  if  lands  descend  to 
[*279]  A,  B,  &  C,  they  *  each  take  a  third  part,  though  A 
&  B  happen  to  be  husband  and  wife.^ 

11.  So  if  lands  descend  or  are  devised  to  A  &  B,  who 
afterwards  intermarry,  they  still  remain  joint-tenants  or  ten- 
ants in  common  of  the  lands,  just  as  before  marriage.'' 

12.  As  the  husband  is  entitled  to  the  entire  rents  of  the 
wife's  lands,  except  as  hereinbefore  stated,  it  follows  that  he 

1  Stickney  v.  Keefe's  Ex'rs,  26  Penn.  St.  397. 

2  Gibson  v.  Zimmerman,  12  Mo.  385 ;  Bomar  v.  Mullins,  4  Rich.  Eq.  80  ; 
Brownson  v.  Hull,  16  Vt.  309;  Todd  v.  Zachary,  1  Busbee,  Eq.  28G  ;  Den  v. 
Whitemore,  2  Dev.  &  Bat.  537 ;  Den  v.  Hardenbergh,  5  Halst.  42 ;  Fairchild 
V.  Chastelleux,  1  Penn.  St.  176  ;  Harding  v.  Springer,  14  Me.  407 ;  Jackson  v. 
Stevens,  16  Johns.  110 ;  Needham  v.  Branson,  5  Ired.  426 ;  Ross  v.  Garrison, 
1  Dana,  35;  Taul  y.  Campbell,  7  Yerg.  319;  Tud.  Gas.  730.  In  Connecticut, 
however,  they  are  joint-tenants,  and  the  husband  may  convey  his  interest. 
Whittlesey  v.  Fuller,  11  Conn.  337.  And  it  is  said  that  they  may  by  express 
words  be  made  tenants  in  common  by  a  gift  to  them  during  coverture.  Prest 
Abs.  41. 

3  Hoffman  v.  Stigers,  28  Iowa,  310. 
*  Hemingway  v.  Scales,  42  Miss.  1. 

6  Lit.  §  291 ;  Wms.  Real  Prop.  184;  Tud.  Gas.  730. 

6  Knapp  V.  Windsor,  6  Cush.  156.  ^  Tud.  Cas.  731 ;  Co.  Lit.  187  b. 


CH.  IX.  §  1.]  ESTATES   BY   MARRIAGE.  333 

alone  can  sue  for  an  injury  to  the  estate  which  affects  these.^ 
But  if  the  injury  affect  the  inheritance,  the  action  must  be  in 
their  joint  names,  and  it  will  survive  to  her  if  she  outlive  him.^ 
So  if  a  tenant  occupies  the  wife's  lands  by  the  consent  of 
husband  and  wife,  and  she  dies,  the  husband  can  maintain  an 
action  in  his  own  name  for  use  and  occupation.^ 

13.  By  the  common  law  neither  husband  nor  wife  could 
convey  lands  to  each  other,*  nor  release  to  each  other.^  But 
the  husband  may  do  this  by  means  of  the  Statute  of  Uses,  by 
conveying  to  another  to  the  wife's  use,^  or  by  a  covenant  with 
a  third  person  to  stand  seised  to  her  use.'^  And  in  Maine, 
husband  and  wife  may  convey  directly  to  each  other,  and  the 
same  is  true  as  to  a  husband  conveying  by  deed  to  his  wife, 
in  Minnesota,^  and  in  lowa.^ 

14.  And  courts  of  equit}'  will  sometimes  sustain  a  deed 
from  husband  to  wife  against  the  grantor's  heir  at  law.^''  And 
a  devise  by  husband  to  wife  may  always  be  good,  as  the  cov- 
erture ceases  before  the  devise  can  take  effect.^^ 

15.  Upon  the  death  of  the  husband,  the  wife's  inheritance 
remains  to  her  unaffected  by  any  alienation  made  or  incum- 
brance created  thereon  by  the  husband.  No  further  act  is 
required  on  her  part  to  put  an  end  to  such  alienation 

or  conveyance  *  than  a  simjile  entry,  instead  of  her  [*280] 
being  driven  to   an  action,  as  was  the  case  at  the 
common  law.^^ 

1  Fairchild  v.  Chastelleux,  1  Penn.  St.  176  ;  Wms.  Real  Prop.  184,  n. ;  Babb 
V.  Perley,  1  Greenl.  6 ;  Mattocks  v.  Stearns,  9  Vt.  326. 

-  2  Kent,  Com.  131;  Babb  v.  Perley,  1  Greenl.  6;  Dippers  at  Tunbridge 
Wells,  2  Wils.  423. 

'^  Jones  V.  Patterson,  11  Barb.  572. 

*  Martin  v.  Martin,  1  Greenl.  394 ;  Voorbees  v.  Presb.  Ch.,  17  Barb.  103. 

5  Frissel  i-.  Rozier,  19  Miss.  510. 

6  Wms.  Real  Prop.  185;  1  Roper,  Hus.  &  Wife,  53. 

7  Thatcher  v.  Omans,  3  Pick.  521. 

8  Bubier  v.  Roberts,  49  Me.  465 ;  Johnson  v.  Stillings,  35  Me.  427 ;  Allen  v. 
Hooper,  50  Me.  372;  Wilder  v.  Brooks,  10  Min.  50. 

9  Hoffman  v.  Stigers,  28  Iowa,  310. 

w  Jones  V.  Obenchain,  10  Gratt.  259 ;  Hunt  v.  Johnson,  44  N.  Y.  27,  37,  41. 

11  1  Roper,  Hus.  &  Wife,  53 ;  Lit.  §  168. 

12  Stat.  32  Hen.  VIII.  c.  28  ;  1  Roper,  Hus.  &  Wife,  56  ;  Cleary  v.  McDowaU, 
1  Cheves  (S.  C.),  139;  Wms.  Real  Prop.  185;  Bruce  v.  Wood,  1  Met.  542;  1 
Bright,  Hus.  &  Wife,  162 ;  Miller  v.  Snowman,  21  Me.  201. 


334  LAW  OF  REAL  PROPERTY.  [bOOK  L 

16.  It  is  no  objection  to  a  woman's  being  a  grantee  of  lands 
from  a  stranger,  that  she  is  a,  feme  covert,  unless  her  husband 
objects  by  some  express  dissent,  the  law  always  presuming  his 
assent,  unless  the  contrary  be  shown.  But  it  is  said  that  she 
cannot  take  as  a  purchaser,  if  he  expressly  objects  to  her  ac- 
cepting the  estate,  and  that  such  disagreement  on  his  part 
divests  the  whole  estate. ^  A  husband  may  dissent  from  a 
purchase  by,  or  devise  to,  his  wife,  since  otherwise  he  might 
be  made  a  tenant  to  his  own  disadvantage.  But  he  cannot 
by  his  dissent  defeat  her  title  as  heir.^ 

17.  It  is  laid  down  by  Coke,^  that  a  wife  may  Avaive  a  pur- 
chase of  land  made  by  her  during  coverture,  and,  after  the 
decease  of  her  husband,  avoid  the  conveyance,  though  he  had 
assented  to  it ;  and  that  her  heirs  may  do  the  same  after  her 
death,  if,  after  her  husband's  death,  she  shall  not  have  agreed 
to  the  purchase.  But  where,  as  in  this  country,  a  wife,  by 
joining  with  her  husband  in  a  deed,  may  part  with  her  lands 
and  pass  a  good  title,  the  joint  act  of  the  two  being  in  all  re- 
spects as  available  as  if  done  by  her  while  sole,  it  would  seem 
that  their  joint  assent  in  accepting  a  title  should  be  as  valid  as 
in  granting  one.  And  in  New  Hampshire,  it  has  been  held 
that  a  deed  to  a,  feme  covert  made  with  her  own  and  her  hus- 
band's assent  vested  the  title  legally  in  her.  And  in  Vermont, 
it  has  been  held  that  a  deed  of  gift  to  a  wife  during  coverture, 
if  accepted  by  her  husband,  is  accepted  by  her,  and  that  her 
refusal  apart  from  him  is  of  no  consequence.^ 

18.  Unless  restrained  by  the  terms  of  the  settlement,  a  mar- 
ried woman  may,  since  the  statute  of  3  &  4  Wm.  IV.  c.  74, 

by  joining  in  a  deed  with  her  husband,  convey  any  in- 
[*281]   terest  she  *  has  in  real  estate.     Such  a  deed  would  of 

course  convey  the  interest  of  both.  Previous  to  that 
statute,  this  was  usually  done  in  England,  by  levying  a  fine, 
which,  as  well  as  recoveries,  is  abolished  by  that  statute.^ 

19.  In  the  United  States,  the  custom  of  a  wife's  joining 
with  her  husband  in  a  deed  of  conveyance  of  her  lands,  has 

1  Co.  Lit.  3  a ;  Com.  Dig.  "  Baron  &  Feme,"  P.  2 ;  Perkins,  §§  43,  44. 

2  1  Dane,  Abr.  368 ;  4  Id.  597.  8  Co.  Lit.  8  a. 
*  Gordon  v.  Haywood,  2  N.  H.  402;  Brackett  v.  Wait,  6  Vt.  424. 

6  Wm.s.  Real  Prop.  188. 


CH.  IX.  §  1.]  ESTATES   BY   MARRIAGE.  335 

prevailed  from  a  very  early  period  in  tlieir  history.  In  most, 
if  not  all  of  them,  there  are  now  existing  statutes  upon  the 
subject  regulating  the  mode  in  which  such  deeds  shall  be  ex- 
ecuted in  order  to  be  valid.^  And  sometimes  equity  will  sus- 
tain a  deed  from  husband  to  wife,  though  void  at  law.^  And 
in  Maine,  a  wife  may  do  this,  though  not  of  the  age  of  twen- 
ty-one years.3  The  discussion  of  the  form  of  such  deeds, 
however,  properly  belongs  to  another  part  of  this  work. 

20.  If  the  husband  expend  money  upon  lands  of  his  wife  in 
his  occupation,  by  erecting  buildings  or  making  improvements 
thereon,  the  law  will  presume  he  intended  it  for  her  benefit, 
and  he  cannot  recover  for  the  same.* 

21.  The  rights  of  the  husband  as  tenant  by  curtesy,  where 
the  wife  dies  after  having  had  issue,  and  leaving  lands  of  in- 
heritance, have  been  considered  in  a  former  chapter.  But  if 
the  wife  die  without  having  had  issue,  nothing  remains  to  the 
husband  as  against  the  claims  of  her  heirs  at  law,  except  the 
right  of  emblements.^ 

22.  It  will  be  perceived  that  a  husband  holding  his  wife's 
estate  of  inheritance  by  marital  right,  is  tenant  for  life  with  a 
reversion  in  the  wife.  As  such,  he  would  be  liable  for  waste 
like  other  tenants  for  life,  if  it  were  not  that  a  wife  could  not 
maintain  such  an  action  against  her  husband.  If,  however, 
he  conveys  his  freehold  to  a  stranger,  who  commits  waste,  the 
action  lies  ;  so  if  the  husband's  estate  is  levied  upon  by  his 
creditors  and  they  commit  waste  ;  and  the  husband  and  wife 
may  join  in  an  action  for  such  an  injury.  And  chan- 
cery will  interpose  by  way  *  of  injunction  against  the  [*282] 
husband  while  he  is  tenant,  to  prevent  his  committing 
waste.^  * 

*  Note.  —  From  the  statutes  of  the  several  States  in  relation  to  the  rights 
of  married  women  to  control  their  own  lands  during  coverture,  tlie  following 


1  Davey  v.  Turner,  1  Dall.  11 ;  Jackson  v.  Gilchrist,  15  Johns.  109 ;  Fowler  v. 
Shearer,  7  Mass.  14 ;  Manchester  v.  Hough,  6  Mason,  67 ;  Durant  v.  Ritchie,  4 
Mason,  45  ;  Page  v.  Page,  6  Cash.  196. 

2  Shepard  r.  Shepard,  7  Johns.  Ch.  57  ;  Bunch  v.  Bunch,  25  Ind.  405. 

3  Adams  v.  Palmer,  51  Me.  488. 

*  1  Roper,  Hus.  &  Wife,  54 ;  Washburn  o.  Sproat,  16  Mass.  449. 
6  Barber  v.  Root,  10  Mass.  260;  2  Kent,  Com.  131. 
6  Babb  V.  Perley,  1  Greenl.  6  ;  2  Kent,  Com.  131. 


336  LAW  OF  EEAL  PROPERTY.  [BOOK  I. 

abstract  of  the  various  provisions  upon  the  subject  has  been  drawn.  —  Ala- 
bama, all  that  the  wife  holds  at  the  time  of  her  marriage,  or  acquires  after- 
wards, remains  her  separate  estate,  not  subject  to  her  husband's  debts.  Such 
estate  may  be  conveyed  by  tiie  joint  deed  of  husband  and  wife,  attested  by  two 
witnesses,  and  she  may  devise  the  same  by  lier  last  will  and  testament.  Code, 
1867,  §§  2371,  2373,  and  2378.  — Arkaiisas,  a  married  woman  may  be  seised  of 
any  estate  in  her  own  right  and  name  and  as  of  her  own  property,  except  such 
as  may  be  conveyed  to  lier  by  her  husband  subsequent  to  the  marriage.  But 
such  property  is  not  exempt  from  the  payment  of  the  husband's  debts,  until 
she  has  filed  a  schedule  of  it  in  the  recorder's  office ;  unless  the  deed,  grant, 
or  other  transfer  of  the  property  expressly  sets  forth  that  the  same  is  designed 
to  be  exempt  from  liabilities  of  the  husband.  She  cannot  make  a  will  unless 
empowered  so  to  do  by  a  marriage  settlement,  or  written  authority  from  the 
husband  before  marriage.  Dig.  of  Stat.  1858,  c.  Ill,  §§  1,  7,  and  8;  c.  180,  §  3. 
And  now,  by  acts  of  1873,  p.  382,  married  women  are  substantially  clothed  with 
full  property  in  and  control  over  real  and  personal  estate  belonging  to  them  or 
acquired  by  them  separate  from  their  husbands,  provided  they  cause  their 
separate  real  estate  to  be  recorded  in  their  names  in  the  counties  in  which  they 
reside.  —  California,  her  property  at  the  time  of  the  marriage,  and  all  she  acquires 
afterwards  by  gift,  devise,  or  descent,  remains  her  separate  property.  The 
husband  has  a  corresponding  right  to  his  property ;  but  what  they  acquire  dur- 
ing coverture,  exiept  in  the  manner  already  stated,  becomes  the  common  property 
of  both.  A  married  woman  may  dispose  of  her  separate  estate  by  deed  or  will, 
as  if  single  ;  but  upon  the  death  of  husband  or  wife,  the  entire  community  property 
goes  to  the  survivor,  if  he  or  she  shall  not  have  abandoned  the  other  and  lived 
separate.  In  such  a  case  the  half  of  the  community  property  may  be  disposed 
of  by  the  party  dying,  or  will  go  to  his  or  her  descendants  or  heirs ;  Code,  1872, 
§§  162,  1273,  1401.  —  Colorado,  the  estate  of  a  married  woman  remains  her 
separate  property,  and  is  not  subject  to  the  disposal  of  the  husband,  but 
may  be  bargained,  sold,  and  conveyed  by  her  as  if  sole.  Laws,  1874,  p.  185.  — 
In  Dacotah,  curtesy  and  dower  are  abolished,  and  neither  husband  nor  wife 
have  any  interest  in  the  property  of  each  other,  except  that  the  husband  must 
support  himself  and  wife  from  his  labor  and  property,  and,  if  unable  to  do  so, 
she  must  assist  him  as  far  as  she  can.  They  may  contract  with  each  other, 
and  every  woman  of  the  age  of  sixteen  years  may  devise  her  estate,  whether 
sole  or  married.  But  in  joint  deeds  of  husband  and  wife,  her  covenants  do  not 
bind  her ;  Civ.  Code,  18G6.  But  if  husband  deserts  his  wife,  or  is  unable  or 
neglects  to  provide  for  his  family,  the  court  may  empower  her  to  act  as  a  feme 
sole  in  acquiring,  holding,  and  disposing  of  property;  Laws,  1870-1,  c.  32,  §  1. — 
Connecticut,  the  real  estate  of  a  married  woman  belonging  to  her  before  marriage, 
or  afterwards  acquired  by  devise  or  inheritance,  or  by  conveyance  in  consider- 
ation of  property  acquired  by  her  personal  services  during  coverture,  cannot 
be  taken  for  her  husband's  debts,  but  shall  be  held  by  her  to  her  sole  and 
separate  use  if  invested  in  her  name  or  in  that  of  a  trustee  for  her.  And  if  her 
husband  be  insane,  the  court  may  authorize  her  to  convey  her  real  estate  as  if 
sole.  Rev.  Stat.  1875,  pp.  56,  186,  187.  The  wife  may  dispose  of  her  estate  by 
joining  in  a  deed  with  her  husband.  Husband  and  wife  take  a  joint  estate  con- 
veyed to  them,  as  joint-tenants,  and  he  may  convey  his  interest  in  the  same  by 
a  separate  deed.  She  may  dispose  of  her  estate  by  her  last  will  in  the  same 
manntr  as  a.  feme  sole.     K  abandoned  by  her  husband,  her  property  vests  in  her 


CH.  IX.  §  1.]  ESTATES    BY    MARRIAGE.  337 

as  her  sole  estate.  But  the  interest  of  the  husband  in  the  estate  of  liis  wife 
cannot  be  taken  for  his  debts  during  her  Hfe.  Gen.  Stat.  1866,  p.  302,  §§  11,  12 ; 
"Whittlesey  v.  Fuller,  11  Conn.  337;  Comp.  Stat.  p.  484,  §  1  ;  Stat.  1856,  c.  36. 
By  act  1859,  c.  75,  the  probate  court  may  order  the  sale  of  the  real  estate  of  a 
minor  married  woman  whose  husband  is  of  age,  upon  their  joint  ai)plication, 
and  their  joint  deed  is  made  as  effectual  as  if  she  had  arrived  at  full  age.  Rev. 
St.  1875,  p.  56,  187.  —  Delaware,  a  wife's  estate  is  held  as  her  sole  ajid  separate 
property,  and  not  subject  to  the  control  of  her  husband  ;  she  may  also  dispose 
of  the  same  by  will,  but  not  so  as  to  affect  her  husband's  right  by  curtesy. 
Laws,  1875,  c.  165,  §  1.  —  Florida,  &  wife's  estate,  on  her  marriage,  continues 
independent  of  the  husband,  and  is  not  liable  for  his  debts.  She  may  devise 
it,  but  cannot  convey  it  by  deed  unless  her  husband  joins  in  tlie  deed. 
Florida,  Dig.  2d  Divis.  T.  5,  c.  1,  §  2 ;  Thompson,  Dig.  1847,  c.  1,  §  1.— 
Illinois,  by  act  1861,  p.  143,  real  property  belonging  to  a  married  woman 
as  her  sole  and  separate  property,  or  which  any  woman  hereafter  married 
owns  at  -the  time  of  her  marriage,  or  which  any  married  woman  during 
coverture  acquires  in  good  faith  from  any  person,  other  than  her  husband, 
by  descent,  devise,  or  otherwise,  together  with  all  the  rents,  issues,  income,  and 
profits  thereof,  is  declared  to  remain  her  sole  and  separate  property,  under 
her  sole  control,  as  though  she  were  sole  ;  and  not  subject  to  the  disposal, 
control,  or  interference  of  her  husband,  or  liable  for  his  debts.  She  may  dispose 
of  her  separate  estate  by  her  last  will,  in  the  same  manner  as  ayc/ne  sole.  Rev. 
Stat.  1855,  c.  110,  §  1.  And  she  may  manage,  sell,  and  convey  her 
*  property  as  fully  as  the  husband  can  his  own  estate.  Rev.  St.  1874,  c.  [*283] 
68,  §  9.  — Indiana,  by  act  of  1859,  c.  141,  a  married  woman  is  enabled  to 
devise  her  real  estate.  And  by  statute  1860,  p.  374,  the  lands  of  a  married 
woman  are  not  subject  to  the  debts  of  the  husband,  but  remain  her  separate 
property  as  if  she  were  unmarried,  except  that  she  cannot  convey  them  but  by 
deed  in  which  her  husband  must  join.  Stat.  1860,  p.  374.  —  Iowa,  she  has  the 
same  power  to  convey  her  lands  as  Rfeme  sole.  Code,  1851,  §  1207,  and  Revision, 
1860,  p.  390;  Code,  1873,  §  2202.  — Kansas,  the  real  estate  owned  by  a  woman  at 
the  time  of  her  marriage,  with  the  rents  and  profits  thereof,  and  that  which 
comes  to  her  by  descent,  or  devise,  or  gift,  except  from  her  husband,  continues 
her  sole  and  separate  property,  and  is  not  subject  to  the  disposal  of  her  husband, 
or  liable  for  his  debts.  She  may  bargain,  sell,  and  convey  the  same,  or  enter  into 
any  contract  in  reference  to  it  as  if  she  were  sole.  But  she  cannot  dispose  of 
more  than  one  half  of  her  property,  both  personal  and  real,  by  will,  without  the 
consent  of  her  husband  in  writing.  Comp.  Laws,  1862,  c.  141,  §§  1-4.  —  Kentucki/, 
she  may  hold  real  estate  to  her  separate  use  to  the  exclusion  of  her  present  or 
future  husband,  if  conveyed  or  devised  to  be  so  held  ;  but  she  cannot  alien  it  with 
or  without  her  husband's  assent.  If  it  is  a  gift,  she  may  alien  by  the  consent  of 
the  donor  or  his  personal  representatives.  Such  estates  cannot  be  sold  or 
incumbered  but  by  order  of  a  court  of  equity,  and  only  for  the  purpose  of 
exchange  and  reinvestment.  A  married  woman  may  dispose  by  will  6f  any 
estate  secured  to  her  separate  use  by  deed  or  devise.  But  she  may  convej'  an 
estate  which  she  owns  or  has  any  interest  in,  as  her  general  property,  as  distin- 
guished from  that  in  which  she  has  a  separate  estate,  whether  legal  or  equitable, 
in  possession  or  remainder,  by  a  deed  in  which  she  and  her  husband  shall  join, 
or  by  a  separate  deed,  if  he  shall  have  already  conveyed  his  interest.  Rev. 
Stat.  1860,  c.  47,  art.  4,  §  17,  and  c.  24,  §§  20,  21,  and  c.  106,  §  4  ;  and  see  Stuart 

VOL.  I.  22 


3o8  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

V.  Wilder,  17  B.  Mon.  58.  On  joint  petition  of  husband  and  wife,  the  court  may 
empower  her  to  use,  enjoy,  and  convey  her  own  property  free  from  her  husband's 
debts  or  claims.  Sup.  Kev.  Stat.  1866,  p.  728.  —  Maine,  the  wife  may  own  real 
estate  in  her  own  right,  which  she  may  sell,  devise,  or  convey  as  a  feme  sole,  with- 
out joinder  or  assent  of  the  husband.  She  may  release  to  her  husband  the  right  to 
control  her  own  property,  and  to  dispose  of  the  income  tliereof  for  tlieir  mutual 
benefit,  and  may  revoke  the  same  in  writing.  But  the  land  of  a  married  woman  may 
be  taken  upon  execution  to  satisfy  debts  contracted  by  her  before  marriage.  Kev. 
Stat.  c.  61,  §§1,2;  and  see  Acts  1861,  c.  46  ;  Acts  1862,  c.  148 ;  Acts  1863,  c.  214  ; 
Moore  v.  Hichardson,  37  Me.  438.  —  Mari/land,  real  property  belonging  to  a  woman 
at  the  time  of  her  marriage,  or  acquired  afterwards  by  gift,  grant,  devise,  or  de- 
scent, is  not  liable  for  her  husband's  debts ;  but  she  holds  it  for  her  separate  use, 
with  power  of  devising  the  same  as  fully  as  if  she  were  sole  ;  or  she  may  convey 
it  by  a  joint  deed  with  her  husband.  Code,  1860,  p.  325,  §§  1,  2.  K  married 
women  are  lessees  of  land,  they  are  subject  to  distress  for  rent  which  has  been 
overdue  for  ninety  days,  as  if  they  were  sole,  and  as  such  are  subject  to  actions 
upon  their  covenants  as  lessees.  And  if  they  make  deeds  of  their  lands,  they 
may  bind  themselves  by  covenants  which  will  run  with  the  land  conveyed.  Laws, 
1867  ;  Laws,  1874,  c.  57,  §  1.  —  Massachusetts,  she  may  hold  to  her  sole  and  sepa- 
rate use,  all  land  which  comes  to  her  by  descent,  devise,  gift,  or  grant,  and  that 
which  she  acquires  by  trade  or  business,  and  all  she  owns  at  her  marriage,  with 
the  rents  and  profits  of  the  same,  which  are  not  to  be  subject  to  the  control  of 
her  husband,  and  which  she  may  bargain,  sell,  and  convey,  and  enter  into  con- 
tracts in  reference  to,  in  the  same  manner  as  if  she  were  sole,  with  this  Umita- 
tion,  that  she  cannot  convey  her  real  estate,  unless  her  husband  joins  with  her 
in  the  deed,  or  she  has  a  license  for  such  sale  from  a  judge  of  the  courts.  She 
may  make  a  will  of  her  estate,  like  a  feme  sole,  except  that  she  cannot  thereby 
deprive  her  husband  of  his  curtesy.  But  this  statute  does  not  affect  any  mar- 
riage settlement,  or  empower  a  husband  to  convey  land  to  his  wife.  Gen.  Stat. 
c.  108.  If  the  wife  of  a  mortgagor  acquire  his  rights,  the  mortgagee  may  bring 
a  writ  of  entry  to  foreclose  the  same  against  her  and  not  against  him.  Campbell 
V.  Bemis,  16  Gray,  487  ;  Conant  v.  Warren,  6  Gray,  5G2.  A  married  woman 
maj'  convey  shares  in  corporations,  and  lease  and  convej'  real  estate,  but  cannot 
by  her  separate  conveyance  cut  ofif  her  husband's  contingent  interest  therein. 
Stat.  1874,  c.  184,  §  1. — Michigan,  the  wife  may  devise  her  real  estate,  if  her 
husband  annex  his  assent  to  the  will  in  writing.  Her  property  at  the  time  of  her 
marriage,  and  any  that  she  acquires  during  coverture,  remains  her  separate 
estate,  though  she  cannot  convey  it  away,  except  by  assent  of  her  husband,  or 
the  authority  of  the  judge  of  probate.  Rev.  Stat.  c.  68,  §  1 ;  c.  85,  §  25.  But 
by  Comp.  L.  1871,  p.  1477,  the  property  of  a  married  woman  is  not  Uable  for  the 
debts  of  the  husband,  and  may  be  controlled,  mortgaged,  conveyed,  and  devised 
by  her  in  the  same  manner  as  if  she  were  unmarried.  If  a  judgment  be  rendered 
against  a  husband  and  wife  for  the  wife's  tort,  the  execution  may  be  levied  on 
her  estate,  but  not  on  his.  Laws,  1867. — Mississippi,  all  the  property  she  lias 
on  her  marriage,  and  all  that  comes  to  her  after  marriage,  by  devise  or  descent, 
remains  her  separate  estate;  nor  is  it  liable  for  the  debts  of  the  husband,  or  any 
incumbrances  created  by  liim.  She  can  only  convey  by  joining  with  her  hus- 
band, who  is  entitled  to  curtesy  in  her  real  estate.  Rev.  Code,  1857,  c.  40,  §  5 ; 
Feb.  28,  1846,  §  6;  Boynton  v.  Finnall,  4  Sm.  &  M.  193.  But  she  may  dispose 
of  her  real  and  personal  estate  by  will  as  if  sole.     Rev.  Code,  1871,  §  1785. — 


CH.  IX.  §  1.]  ESTATES   BY   MARRIAGE.  339 

Missouri,  the  M'ife  may  convey  her  land  by  deed  executed  by  herself  and  hus- 
band, and  acknowledged  by  herself.  She  cannot  make  a  will  unless  author- 
ized by  a  marriage  settlement,  or  her  husband's  written  agreement  before 
marriage.  Her  property,  however,  is  not  hable  for  the  *  husband's  debts.  [*284] 
Rev.  Stat.  1844,  c.  185,  §  3;  184-5,  c.  32,  §  35;  1849,  §§  1-3.  She  may 
uow  devise  her  lands  by  will,  provided  the  husband's  curtesy  be  not  affected 
thereby.  Gen.  Stat.  1866,  c.  115,  §  13.  —  Minnesota,  husband  and  wife  may  by 
their  joint  deed  convey  the  real  estate  of  the  wife  in  like  manner  as  she  might 
do  by  her  separate  deed  if  she  were  unmarried ;  but  she  is  not  bound  by  any 
covenants  therein.  She  may  devise  any  real  estate  held  by  her,  or  to  which  she 
is  entitled  in  her  own  right,  by  her  last  will  and  testament,  with  the  consent  of 
her  husband  in  writing  annexed  to  such  will.  Stats.  Comp.  1858,  c.  35,  §  2,  and 
c.  40,  §  1.  She  may  hold,  use,  and  enjoy  her  property  and  the  rents  and  profits 
thereof  free  from  the  control  of  her  husband,  as  fully  as  if  she  were  sole.  Stat. 
1873,  c.  37,  Tit.  III.  §  47.  —  Neiv  Hampshire,  if  of  age,  she  may  join  with  her 
husband  in  conveying  her  land ;  and,  if  under  age,  their  deed  will  release  her 
dower.  She  may  devise  her  lands  to  any  one  except  her  husband,  though  not 
so  as  to  bar  any  right  of  the  husband  acquired  by  marriage  contract.  Stat.  1833, 
0.  158,  §§  10,  11  ;  1854,  c.  15,  §  22;  Gen.  Stat.  1867,  c.  164,  §§  11,  1.  And  estates 
may  be  leased  or  conveyed  to  a,  feme  covert,  to  be  held  to  her  sole  and  separate  use, 
without  the  intervention  of  trustees,  free  from  the  interference  of  the  husband, 
in  respect  to  which  she  has  the  same  rights  and  remedies,  and  will  be  liable  to 
the  same  actions  as  &  feme  sole.  1846,  c.  327,  §§  3,  4  ;  Bailey  v.  Pearson,  9  Fost. 
77.  By  Laws  1860,  c.  2342,  Gen.  Stat.  1867,  c.  164,  §§  11,  1,  a  rtiarried  woman 
may  hold  to  her  own  use,  free  from  the  interference  of  her  husband,  all  property 
inherited  by,  bequeathed,  given,  or  conveyed  to  her,  except  the  conveyance  or 
gift  is  occasioned  by  payment  or  pledge  of  the  husband's  property.  She  may 
make  a  valid  will  in  the  same  manner  as  if  she  were  sole,  and  her  husband  may 
be  a  devisee.  But  no  such  will  shall  operate  to  alienate  or  affect  injuriously  the 
life-estate  of  the  husband,  as  tenant  by  the  curtesy.  —  New  Jersey,  the  property 
she  has  at  her  marriage,  and  what  she  acquires  by  gift,  grant,  or  devise,  con- 
tinues to  be  her  sole  and  separate  estate,  as  if  she  were  still  sole,  together  with 
the  rents  and  profits  ;  the  same  being  neither  liable  for  the  husband's  debts,  nor 
subject  to  his  disposal.  She  cannot  convey  her  lands  without  his  consent,  but 
she  may  bind  herself  by  the  covenants  in  her  deed  of  her  lands  in  the  same  way 
as  if  sole.  Stat.  1852 ;  Id.  1857,  c.  189,  §  1  ;  Den  v.  Lawshee,  4  N.  J.  613.  And 
now  a  married  woman,  if  of  the  age  of  twenty -one  years,  may  devise  her  prop- 
erty, but  not  to  affect  the  husband's  interest  therein.  Laws,  1864.  — In  Nevada, 
all  property  owned  by  either  husband  or  wife  before  marriage,  or  acquired  after 
by  gift,  bequest,  devise,  or  descent,  shall  be  hers  or  his  separate  property  respec- 
tively, and  all  property  acquired  by  other  ways  shall  be  common  to  both.  She 
may  have  a  trustee  of  her  separate  property  appointed  by  the  district  court. 
They  may,  by  joint  deed,  convey  her  real  estate  in  like  manner  as  she  might  do 
if  sole,  except  that  she  cannot  bind  herself  by  covenant  further  than  is  necessary 
to  effectually  convey  the  land.  Laws,  1861,  1865.  —  Neiv  York,  the  estate  of  a 
Jeme  covert  at  the  time  of  her  marriage,  as  well  as  the  rents  thereof,  continues 
hers  as  if  sole,  not  subject  to  the  husband's  control  or  liable  for  his  debts. 
She  may,  during  coverture,  take  an  estate  by  descent,  gift,  grant,  or  de- 
vise, from  any  person  but  her  husband,  and  hold  the  same  to  her  separate 
use.     She  may  convey  or  devise  her  estate  or  the  rents  or  profits  thereof  as 


340  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

if  she  were  sole.  3  "Rev.  Stat.  5th  ed.  1859,  pp.  239,  240,  §§  75,  77.  Bv 
Laws  1860,  c.  90,  and  Laws  1862,  c.  172,  it  is  declared  that  the  real  prop- 
erty which  a  married  woman  now  owns  as  her  sole  and  separate  proper, y, 
that  which  comes  to  her  by  descent,  devise,  gift,  or  grant,  and  that  which 
she  owns  at  the  time  of  her  marriage,  with  the  rents  and  proceeds  of  it,  shall 
remain  her  sole  and  separate  property,  not  sul)ject  to  the  interference  or 
control  of  her  husband,  or  liable  for  his  debts.  She  may  bargain,  sell,  and 
convey  such,  estate,  and  enter  into  any  contract  in  reference  to  the  same 
with  like  effect  as  if  she  were  unmarried ;  and  she  may  in  like  manner  make 
covenants  for  title  which  shall  be  binding  upon  her  separate  property.  But  no 
contract  of  hers  in  respect  to  such  property  shall  be  binding  upon  the  hus- 
band in  any  way. —  Noi-th  Carolina,  the  husband  cannot  lease  or  convey  wife's 
lands,  except  by  her  consent,  evidenced  by  a  private  examination  before  the 
magistrate  taking  an  acknowledgment  of  the  same.  Stat.  1849.  Married  women 
may  devise  their  lands  like  femes  sole,  but  not  so  as  to  deprive  husbands  of 
their  rights  of  curtesy  therein.  Gen.  Stat.  1873,  c.  69,  §  31. —  Ohio,  the  sep- 
arate property  of  a  wife  is  not  liable  to  be  taken  for  the  debts  of  her  husband 
during  her  life  or  that  of  her  children.  She  can  convey  her  lands  by  joining  in  a 
deed  with  her  husband  and  acknowledged  by  her,  upon  a  separate  examination. 
Stat.  1846,  Feb.  28,  §  1  ;  Swan,  Rev.  Stat.  1854,  c.  34,  §§  2,  3  ;  Rev.  Stat.  1860. 
c.  34,  §§  2,  3.  By  Laws,  1861,  p.  54,  any  estate  legal  or  equitable  in  real  prop- 
erty belonging  to  any  woman  at  her  marriage,  or  which  comes  to  her  during 
coverture  by  conveyance,  devise,  or  inheritance,  or  by  purchase  with  her  sepa- 
rate money  or  means,  together  with  the  rents  and  issues  thereof,  remains  her 
separate  property  and  under  her  sole  control ;  and  she  may  lease  the  same  in 
her  own  name  for  any  period  not  exceeding  three  years.  After  her  decease,  the 
husband  has  an  estate  by  the  curtesy  in  her  real  property  ;  but  during  the  life 
of  the  wife,  or  any  heir  of  her  body,  such  estate  cannot  be  taken  by  any  pro- 
cess of  law  for  the  payment  of  his  debts,  or  be  conveyed  or  incumbered  by  him, 
unless  she  join  in  the  conveyance.  See  Westerman  v.  Westerman,  18  Am.  L. 
Reg.  690.  —  Oregon,  a  married  woman  may  convey  her  real  estate  by  joint  deed 
with  her  husband  acknowledged  by  her.  She  maj'  dispose  of  any  real  estate 
held  in  her  own  right,  subject  to  her  husband's  right  as  tenant  by  the  curtesy. 
Stats.  1855,  p.  519.  Married  women  may  devise  their  estates  subject  onlj'  to 
their  husbiind's  right  by  curtesy.  And  they  may  convey  them  by  deed  jointly 
executed  ])y  them  and  their  husbands.  If  the  husband  deserts  his  wife,  she  may 
deal  with  her  property  in  the  same  manner  as  if  she  were  sole.  Gen.  Laws, 
pp.  288,  515,  663.  —  Pennsylvania,  all  her  property  at  the  time  of  marriage,  or  ac- 
quired by  her  during  coverture  by  will,  deed,  descent,  or  otlierwise,  remains  her 
separate  property,  and  may  be  disposed  of  by  her  last  will  and  testament.  It  is 
subject  neither  to  the  husband's  debts  nor  to  his  control.  The  law  reserves  cer- 
tain rights  to  husbands  in  particular  cases,  out  of  lands  of  their  wives,  when 
devised  by  them.  The  estate  by  the  curtesy  is  exempt  from  levy  during  the  life 
of  the  wife.  Purdon,  Dig.  1861,  pp.  699,  700,  1018  ;  Dunlop,  Dig.  996,  997.  The 
wife  may  convey  her  separate  property  by  a  deed  in  which  her  husband  shall 
join,  she  acknowledging  the  same  upon  a  separate  examination.  Id.  99.  She 
may  take  or  purchase  lands,  and  bind  them  by  judgment  to  secure  the  pay- 
ment of  the  purcliase-money ;  and  if  her  husband  neglects  or  refuses  to  provide 
for  her,  she  may  have  the  riglits  of  a  feme  sole  trader,  and  dispose  of  her  real  or 
personal  estate.     Patterson  v.  Robinson,  25  Penn.  St.  81 ;  Stat.  1855,  No.  456  — 


CH.  IX.  §  1.]  ESTATES    BY   MARRIAGE.  341 

Rhode  Island,  she  may  dispose  of  her  real  estate  by  will,  or  convey  it  by  joint 
deed  of  self  and  husband,  she  acknowledging  the  same,  upon  a  sepai'ate  exami- 
nation. Rev.  Stat.  c.  136,  §§  6,  7.  The  property  sl^e  has  or  may  acquire  during 
coverture  is  secured  to  her  sole  and  separate  use,  and  neitlier  that  nor  its  rents 
or  profits  shall  be  liable  for  the  debts  of  tlie  husband ;  and  on  his  death  the  same 
remains  her  sole  and  separate  property,  if  she  survive  him.  Gen.  Stat. 
1872,  c.  152,  §  1.  —  Tennessee,  she  may  dispose  by  will  of  any  estate 
*  secured  to  her  separate  use,  by  deed,  devise,  or  bequest,  or  in  the  exe-  [*28o] 
cutiou  of  a  specific  power  to  tliat  effect.  And  the  interest  which  a  hus- 
band has  by  marriage  in  his  wife's  estate  is  not  subject  to  the  claim  of  his  cred- 
itors. Stat.  1852,  c.  180,  §  4;  1850,  c.  36,  §  1.  —  Texas,  her  property  owned  at 
the  time  of  marriage,  or  acquired  afterwards,  by  gift,  devise,  or  descent,  is  se- 
cured to  her  by  the  Constitution  as  her  separate  property.  Art.  7,  §  19 ;  Stat. 
1848,  c.  79,  §  2.  During  marriage,  the  husband  has  tlie  management  of  the 
wife's  separate  property.  Land  acquired  by  husband  and  wife  during  coverture, 
becomes  the  common  property  of  both,  but  may  be  disposed  of  by  the  husband 
alone,  and  goes  to  the  survivor,  if  there  be  no  children  ;  if  there  are  children, 
one  half  of  such  property  goes  to  the  survivor.  By  the  Texas  laws,  husband 
and  wife  are  distinct  persons  as  to  their  estates.  Wood  v.  Wheeler,  7  Texas, 
13.  See  Oldham  &  White's  Dig.  1859,  p.  24,  and  p.  312,  arts.  1393,  1395.— 
Vermont,  husband  and  wife  may  by  their  joint  deed  convey  the  real  estate  of  the 
wife,  in  like  manner  as  she  might  do  by  her  separate  deed,  if  she  were  unmar- 
ried ;  but  she  is  not  bound  by  any  covenant.  If  real  estate  belonging  to  the 
wife  is  taken  for  any  public  use,  the  damages  therefor  are  secured  to  her.  She 
may  devise  any  lands  belonging  to  her  at  marriage,  or  any  interest  that  is 
descendible  to  her  heirs;  and  the  rents,  issues,  and  profits  of  these  lands  are 
exempt  from  liability  in  resjiect  of  any  debts  of  the  husband.  Kev.  Stat.  1863, 
c.  71,  §'§  16,  17,  18,  and  c.  65,  §  2.  A  conveyance  of  real  estate  to  husband  and 
wife  does  not  make  a  tenancy  in  common.  Id.  c.  64,  §  3.  If  the  husband 
abandon  the  wife  and  leave  the  State  without  providing  for  her,  the  Supreme 
Court  may  authorize  her  to  sell  her  real  estate.  Acts,  1866.  — Virginia,  the  wife 
conveys  her  estate  by  a  deed  in  which  her  husband  joins,  she  being  privily  ex- 
amined. Lee  V.  Bank  of  United  States,  9  Leigh,  200.  She  can  only  dispose  of 
her  separate  estate  by  will  or  in  the  way  of  exercising  a  power  of  appointment. 
Code,  1873,  p.  910.  —  Wisconsin,  the  real  estate,  with  the  rents  and  profits  thereof, 
belonging  to  any  married  woman,  or  acquired  by  descent,  grant,  or  devise,  is  not 
subject  to  the  disposal  of  her  husband,  or  liable  for  his  debts,  but  remains  her 
sole  and  separate  property  as  if  she  were  sole.  She  may  join  with  her  husband 
in  a  deed  of  conveyance,  or  may  execute  it  as  if  sole.  She  may  dispose  of  her 
estate  by  will.  Rev.  Stat.  1858,  c  95,  §§  1-3,  and  c.  86,  §  12.  She  may  bring  tres- 
pass in  her  own  name  for  an  injury  done  to  lier  real  estate,  even  though  her 
husband  lives  with  her  and  cultivates  the  land  for  her.  Boos  v.  Gomber,  24  Wis. 
499.  — West  Virginia,  a  married  woman  may  take  and  hold  to  her  sole  and  sep- 
arate use,  and  convey  and  devise  tlie  same  as  if  sole,  any  real  or  personal  estate 
or  interest  therein,  and  the  rents  and  profits  thereof.  Nor  shall  the  same  be 
subject  to  the  debts  or  disposal  of  her  husband.  But,  in  order  to  convey  her 
real  estate,  her  husband  must  join  in  the  deed.     Code,  1868,  c.  66,  §§  1-3. 


342 


LAW   OP.  REAL  PROPERTY. 


[book  I. 


SECTION  II. 

RIGHTS   OF   HOMESTEAD. 

D1V13.  1.  What  are  Homestead  Rights,  and  who  may  Claim. 

D1VI8.  2.  In  -what  such  Rights  may  be  Claimed. 

Divis.  3.  How  such  Rights  are  Ascertained  and  Declared. 

Divis.  4.  How  far  such  Rights  answer  to  Estates. 

Divis.  5.  How  far  such  Rights  are  exempt  from  Debts. 

Divis.  6.  How  far  such  Rights  prevent  Alienation. 

Divis.  7.  How  such  Rights  may  be  Waived  or  Lost. 

Divis.  8,  Of  Procedure  affecting  such  Rights,  and  Effect  of  Change  in  the 
Condition  of  the  Estate. 


DIVISION  I. 


WHAT   ARE  HOMESTEAJD  EIGHTS,  AND  WHO  MAY  CLAIM. 


1.  Nature  and  object  of  homestead  rights. 

2.  Rules  of  construction  applied  to  them. 

3.  Divisions  of  the  subject. 

3  a.  Who  may  claim  in  Alabama  and  Arkansas. 

4.  Who  may  claim  homestead  rights  in  California. 

4  a.  Who  may  claim  in  Florida. 
6,    Who  may  claim  in  Georgia. 

6.  Who  may  claim  in  Illinois. 

7.  Who  may  claim  in  Indiana. 

8.  Who  may  claim  in  Iowa. 

8a-8c.  Who  may  claim  in  Kansas,  Kentucky,  and  Louisiana. 

9.  Who  may  claim  in  Maine. 

10.  Who  may  claim  in  Massachusetts. 

11.  Who  may  claim  in  Michigan. 

12.  Who  may  claim  in  Minnesota. 

13.  Who  may  claim  in  Mississippi. 

13  a,  13  b,  13  c.  Who  may  claim  in  Missouri,  Nebraska,  and  New  Jersey. 

14.  Who  may  claim  in  New  York. 
14  a.  Who  may  claim  in  Nevada. 

15.  Who  may  claim  in  New  Hampshire. 

16-19.     Who  may  claim  in  North  Carolina,  Ohio,  South  Carolina,  Ten- 
nessee, Texas,  and  Vermont. 

1.  The  right  of  homestead,  which  has  been  established  bv 
statute,  with  greater  or  less  stringency,  in  at  least  thirty-four 
of  the  States,  partakes  more  nearly  of  the  character  of  an 
estate  for  life  than  any  other,  and  is  treated  of  as  coming 


CH.  IX.  §  2.]  ESTATES    BY   MARRIAGE.  343 

within  that  category.*  Indeed,  in  some  of  the  States  it  comes 
properly  within  that  class  of  estates.  The  common  law  has 
no  analogous  interest  or  estate,  and  it  owes  its  creation  wholly 
to  statutes.  This  circumstance  renders  it  necessary  to  exam- 
ine these  in  detail,  pointing  out,  as  well  as  may  be,  wherein 
their  provisions  agree,  and  how  far  the  decisions  in  one  State 
have  served  by  way  of  analogy  to  harmonize  its  system  of 
homestead  rights  with  those  in  force  in  other  States.  The 
general  policy  under  which  these  laws  have  been  instituted, 
has  been  to  secure  to  a  householder  and  his  family  the  benefit 
of  a  home  beyond  the  reach  of  legal  process  on  the  part  of 
creditors.  And  to  guard  this  more  effectually,  in  most  of  the 
States  no  release  or  alienation  of  an  estate  thus  secured  is  of 
any  avail,  unless  assented  to  by  the  wife  of  such  householder, 
through  whom  the  interests  of  their  minor  children  are  also 
sought  to  be  guarded  and  protected. 

1  a.  The  question  has  been  raised  and  considered  in  several 
of  the  States,  whether  and  how  far  these  acts  exempting  estates 
from  liability  to  respond  to  creditors  for  the  debts  of  their  own- 
ers, are  a  violation  or  otherwise  of  the  spirit  of  the  provision 
of  the  Constitution  of  the  United  States,  which  prohibits 
States  from  passing  laws  impairing  the  obligation  of  contracts. 
And  the  conclusions  to  which  the  courts  have  come  do  not  seem 
to  harmonize  in  all  respects.  In  Wisconsin  it  was  held  that  the 
act  declaring  the  mortgage  or  conveyance  of  the  husband's 
homestead  invalid  unless  executed  b}^  the  wife,  was  constitu- 
tional.^ In  North  Carolina  it  was  held  that  the  constitution 
of  the  State  of  1868,  which  extended  the  homestead  exemp- 
tion to  debts  contracted  before  that  was  adopted,  was  not 
a  violation  of  the  Constitution  of  the  United  States.^  So  the 
constitution  of  South  Carolina  of  1868,  and  the  law  passed  by 
virtue  of  it,  exempting  homesteads,  were  held  to  be  constitu- 

*  Note.  —  The  reader  will  find  the  "  Homestead  and  Exemption  Laws  of  the 
Southern  States  "  fully  considered  and  explained  in  19  Am.  Law  Reg.  1  and  137. 
It  is  there  stated  that  in  Georgia  homestead  is  exempted  to  the  value  of  $2,000, 
which,  if  carried  into  effect  in  respect  to  every  head  of  a  family  in  the  State, 
would  amount  to  three  times  the  value  of  all  the  land  in  it. 

1  Barker  v.  Dayton,  28  WiS;,  368. 

2  Hill  V.  Kessler,  63  N.  C.  437  ;  Garrett  v.  Chesire,  69  N.  C.  396. 


344  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

tioniil,^  thougli  such  exemption  did  not  affect  a  mortgage  made 
before  it  was  adopted. ^  But  in  Virginia  it  was  held  that  a 
law  made  under  their  constitution  exempting  homesteads,  was 
unconstitutional  so  far  as  it  applied  to  contracts  entered  into, 
or  debts  contracted,  before  the  adoption  of  the  constitution,  as 
being  in  violation  of  the  Constitution  of  the  United  States.** 
In  a  case  from  Georgia,  a  creditor  had  obtained  a  judgment 
against  his  debtor,  but,  before  the  execution  was  levied,  the 
State  passed  an  act  exempting  homesteads  of  debtors,  which 
extended  the  exemption  much  beyond  what  it  stood  at  the  time 
when  the  judgment  was  recovered.  The  United  States  court 
held  the  exemption  void  as  to  the  judgment,  because  impairing 
the  obligation  of  the  contract  by  withdrawing  property  which 
was  liable  for  the  debt  when  it  was  contracted.*  In  Alabama 
the  court  held,  "  There  is  no  constitutional  exception  to  laws 
which  exempt  certain  portions  of  a  debtor's  property  from 
execution,  from  being  so  modified  as  to  increase  the  exemp- 
tions and  the  modifications  applicable  to  contracts  previously 
entered  into."'  ^  The  clause  in  the  statute  of  Nevada  of  1865, 
declaring  any  mortgage  or  abandonment  of  a  homestead  for 
securing  a  debt  of  the  owner  invalid,  was  declared  unconsti- 
tutional.^ In  Louisiana,  Georgia,  and  Mississippi,  acts  exempt- 
ing lands  from  levy  for  homesteads,  for  debts  contracted 
before  their  passage,  were  held  to  be  constitutional.'^  It  may 
be  added  in  this  connection  that  the  bankrupt  law  of  the 
United  States  is  held  valid  and  constitutional  which  exempts 
from  its  effects  such  property  as  is  exempt  from  levy  and  sale 
under  execution  by  the  law  of  the  State  in  which  the  bank- 
rupt has  his  domicil  at  the  time  of  commencing  the  proceed- 
ings in  bankruptcy.^ 

2.  But  while  the  statute  is  founded  upon  considerations  of 
public  policy,^  the  principles  of  construction  which  have  been 
applied  to  it  by  the  courts  of  the  different  States  have  often 
been  at  variance  with  each  other.     While  some  have  applied 

1  Re  Kennedy,  2  S.  C.  216.  2  shelor  v.  Mason,  2  S.  C.  233. 

8  Homestead  Cases,  22  Gratt.  SOL  «  Gunn  v.  Barry,  15  Wall.  623. 

8  Sneider  v.  Heidelbarger,  45  Ala.  134.         ^  Dunker  v.  Chedic,  4  Nev.  378. 
■^  Robert  y.  Cow,  25  La.  Ann.  200;  Hardiman  y.  Donner,  39  Ga.  425 ;  10  Am. 
L.  Keg.  143 ;  Stephenson  v.  Osborn,  41  Miss.  119. 

8  In  re  Deckert,  22  Am.  L.  Reg.  624.         9  Robinson  v.  Wiley,  15  N.  Y.  494. 


CH.   IX.  §  2.]  ESTATES   BY   MARRIAGE.  845 

to  its  language  the  test  of  stringent  technical  rules,  others 
have  sought,  even  in  terms  of  rhetoric,  for  adequate  forms  of 
expressing  the  liberal  extent  to  which  it  should  be  carried. 
In  some  of  the  States,  it  was  thought  to  be  a  subject  of  suffi- 
ciently general  importance  to  incorporate  it  as  a  principle  into 
their  constitutions.^  In  Minnesota  the  courts  construe  the 
statute  strictl}',  as  being  in  derogation  of  the  common  law,^ 
while  in  Illinois  it  is  treated  as  a  remedial  measure  and  is 
construed  liberally.^ 

A  homestead  in  law  means  a  home  place,  or  place  of  the 
home,  and  is  designed  as  a  shelter  of  the  homestead  roof,  and 
not  as  a  mere  investment  in  real  estate,  or  the  rents  and 
profits  derived  therefrom.  Nor  would  it  lose  this  character 
by  a  temporary  absence  of  the  owner  without  an  intent  to 
abandon  it.^ 

3.  The  whole  system  is  of  recent  origin,  scarcely  reaching 
back  a  score  of  years  since  the  first  statute  was  enacted.  In 
treating  of  it,  it  is  proposed  to  consider,  1.  Who  may  claim  a 
right  of  homestead ;  2.  In  what  property  it  may  be  claimed, 
having  reference  to  the  title  and  extent  and  manner  of  owner- 
ship ;  3.  In  what  manner  the  right  is  limited  and  ascertained ; 
4.  The  nature  of  the  right  regarded  as  an  estate  ;  5.  How  far 
the  same  is  exempt  from  forced  sale ;  and,  6.  How  the  same 
may  be  sold,  released,  or  abandoned.* 

3  a.  In  Alabama,  the  right  is  secured  to  the  "  head  of  a 
family,"^  and  after  the  death  of  the  owner,  the  exemption 
continues  during  the  minority  of  the  children.^ 

*  Note.  —  The  reader  should  bear  in  mind  that  the  statutes  in  relation  to 
homestead,  and,  in  some  of  the  States,  their  constitutions,  have  undergone  im- 
portant changes  within  a  few  years,  especially  since  the  reconstruction  of  the 
seceded  States  ;  and  while  it  has  been  attempted  to  state  the  law  as  it  now  exists 
in  the  different  States,  it  is  exceedingly  difficult  to  distinguish,  in  referring  to 
the  cases  cited,  to  which  period  of  the  law  tliey  are  to  be  assigned.  They  are  ac- 
cordingly retained  because  the  system  would  be  incomplete  without  them. 


1  Const.  California,  art.  11,  §  15;  Texas,  art.  22;  Indiana,  art.  1,  §  22;  Wis- 
consin, art.  1,  §  17  ;  Michigan,  art.  16,  §  (2). 

2  Olson  V.  Nelson,  3  Minn.  5-3.  3  Deere  v.  Cliapman,  25  111.  610. 

4  Austin  V.  Stanley,  46  N.  H.  51 ;  Davis  v.  Andrews,  30  Vt.  678 ;  Taylor  i: 
Boulware,  17  Texas,  74;  Benedict  v.  Bunnell,  7  Cal.  249  ;  Moss  v  Warner,  10 
Cal.  296 ;  Barney  v.  Leeds,  51  N.  H.  265,  it  is  "  the  place  where  one's  dwelling 
is."     Tomlinson  v.  Swinney,  22  Ark.  400. 

5  Kev.  Code,  §  2880,  sect.  4.  6  Constitution,  18G8,  art.  14,  §  2. 


0-16  LAW  OP  REAL  PROPERTY.  [BOOK  T. 

3  b.  Iq  Arkansas,  the  exemption  extends  to  residents  of  the 
State  who  are  married  men,  or  heads  of  families,  whether 
aliens  or  citizens;^  and  by  construction  to  unmarried  men ^ 
and  to  every  male  and  female,  being  a  householder.^ 

4.  In  California  the  right  extends  to  "  heads  of  families," 
but  not  to  unmarried  perspns,  unless  they  have  charge  of 
minor  brothers  or  sisters,  or  mi^or  children  of  brothers  or 
sisters,  or  of  a  mother  or  unmarried  sijster  living  in  a  house 
with  them.^  "  Head  of  a  family,"  as  here  used,  has  no  refer- 
ence to  the  sex  of  the  party,  nor  whether  married  or  other- 
wise.^ If  a  wife  die  without  children,  living  her  husband, 
he  ceases  to  have  a  right  of  homestead,  whereas,  if  she  sur- 
vive him,  she  may  become  the  head  of  the  family.^  And 
as  such,  she  may,  by  the  statute  of  1865-66,  have  a  home- 
stead set  out,  if  none  was  set  out  in  her  husband's  life;'' 
and  upon  the  death  of  husband  or  wife,  the  homestead  vests 
absolutely  in  the  survivor  by  the  statute  of  1862.^  But  this 
statute  makes  no  provision  for  an  interest  in  the  homestead 
in  the  children,^  though  it  is  considered  that  if  a  widow  have 
a  homestead  set  out  to  her,  it  is  for  the  benefit  of  herself  and 
minor  children. ^° 

4  a.  The  exemption  in  Florida  is  in  favor  of  the  head  of  a 
family  residing  in  the  State,  but  does  not  extend  to  taxes  or 
obligations  contracted  for  the  purchase-money  of  the  premises 
or  the  erection  of  improvements  or  certain  classes  of  labor.^^ 
By  the  law  as  it  stood  in  1847,  if  the  owner  died  intestate, 
the  homestead  descended  to  his  or  her  issue  then  living ;  and 
if  no  children  were  living,  it  went  to  the  widow,  if  there  was 
one.^^ 

5.  In  Georgia,  the  right  was  to  the  head  of  a  family,  and, 
to  a  limited  extent,  to  his  or  her  children  under  the  age  of 
fifteen  years.^^     But  by  the  present  constitution,  this  exemp- 

1  Constitution,  1868,  art.  12,  §  2.     McKensie  v.  Murpliy,  2i  Ark.  155. 

2  Greenwood  v.  Maddox,  27  Ark.  648.  3  gtat.  1858,  c.  68. 

4  Const,  art.  11,  §  15;  Wood's  Dig.  483,  484.  ^  stat.  1868,  p.  116. 

6  Revalk  v.  Kraemer,  8  Cal.  71 ;  Gee  v.  Moore,  14  Cal.  476,  477 ;  Bowman  v. 
Norton,  16  Cal.  217. 

^  Matter  of  estate  of  Busse,  35  Cal.  810. 

8  Matter  of  estate  of  Wixora,  35  Cal.  320.  9  Rich  v.  Tubbs,  41  Cal.  34. 

10  Higgins  V.  Higgins,  46  Cal  259.  'i  Constitution,  1868,  art.  9,  §  1. 

12  Thomp.  Dig.  1847,  p.  357.  "  Davenport  i-.  Alston,  14  Ga.  271. 


CH.  IX.  §  2.]  ESTATES    BY   MARRIAGE.  347 

tion  extends  to  heads  of  families,  guardians,  and  trustees  of 
families  of  minor  children,  excepting,  however,  taxes,  money 
borrowed  and  expended  for  improvements,  or  for  the  purchase 
of  the  homestead  and  labor  thereon  or  removal  of  incumbrances 
upon  it.^  And  "  head  of  a  familj^  "  has  been  held  to  include 
a  single  man  whose  mother  and  sisters  lived  with  him  and 
were  supported  by  hira.^  But  a  bachelor  living  alone,  though 
having  servants,  is  not  a  head  of  a  family.^  Minor  children 
of  a  deceased  owner  of  a  homestead  are  entitled  to  hold  it 
against  his  creditors.*  But  the  exemption  does  not  run 
against  claims  for  the  purchase-money  of  the  estate.^ 

6.  In  Illinois  it  attaches  only  to  premises  owned  by  a 
householder  with  a  family.^  The  language  of  the  statute  is, 
*' owner,  occupant,  resident,  and  householder  having  a  family," 
and  to  the  widow  of  such  an  one  and  family  till  the  young- 
est child  is  twenty-one  years  of  age,  and  during  the  widow's 
life.'^  Such  exemption  applies  to  all  judgments,  whether  ex 
contractu  or  ex  delicto,^  or  for  fine  and  costs  in  criminal  pro- 
ceedings.^ 

7.  In  Indiana  the  exemption  is  limited  to  a  "  resident 
householder ;  "  but  it  has  been  held  to  extend  to  one  living 
with  his  sister  who  contributes  to  the  expenses  of  the  house- 
hold ;  1*^  and  extends  to  a  wife,  if  she  is  the  debtor  and  owns 
the  estate. ^^ 

8.  In  Iowa  the  exemption  is  to  the  "  head  of  a  family." 
But  a  widower  or  widow  may  be  such,  though  without  chil- 
dren, provided  he  or  she  continue  to  occupy  the  premises 
which  they  occupied  during  the  life  of  the  deceased. ^^  xhe 
Code  of  1873  extends  the  exemption  to  every  family,  and 
ascribes  that  term  to  a  widower  or  widow  with  or  without 

1  Constitution,  1868,  art.  7,  §  1  ;  Code,  1873,  §  5135. 

2  Marsli  V.  Lozenby,  41  Ga.  154.  3  Calhoun  v.  McLindon,  42  Ga.  405. 
*  Roff  V.  Johnson,  40  Ga.  555. 

5  Chambliss  v.  Phelps,  39  Ga.  390 ;  Baker  v.  Bowen,  44  Ga.  14  ;  McGliec  v. 
Way,  46  Ga.  282. 

6  Kitchell  V.  Burgwin,  21  111.  40 ;  Deere  v.  Chapman,  25  111.  612. 

7  Stat.  1869,  c.  48  a,  p.  327  ;  1873,  p.  226. 

8  Conroy  v.  SulHvan,  44  111.  451.  °  Loomis  v.  Gerson,  62  111.  11. 
10  2  Ind.  Stat.  367 ;  Graham  v.  Crockett,  18  Ind.  119. 

n  Constitution,  art.  1,  §  42  ;  Stat.  1862  and  1870 ;  Crane  v.  Waggoner,  33  Ind 
83.  12  Code,  p.  197. 


348  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

children,  if  the  owner  of  the  homestead.  But  occupancy  and 
use  of  the  dwelling-house  by  the  family  as  a  homestead 
are  essential  to  its  being  exempt.  Intention  to  make  it 
such  is  not  enough.^  If  a  wife  survive  her  husband,  the 
owner  of  the  homestead,  she,  as  his  successor,  has  a  right  to 
enjoy  it,  although  married  again.^  So  if  he  survive  her,  she 
being  the  owner  of  a  homestead,  he  will  take  it  as  her  succes- 
sor, though  he  have  no  children.^  If  the  owner  live  on  the 
land,  he  may  claim  the  right,  although  his  wife  and  children 
have  never  resided  in  the  State.*  A  sou,  with  a  mother  and 
brothers  and  sisters,  or  either,  dependent  on  him,  may  claim 
it.  But  a  brother  unmarried,  with  whom  a  married  brother 
and  wife  lived  and  kept  his  house,  was  not  held  to  be  the  head 
of  a  family.^  It  does  not  attach  until  the  owner  actually  occu- 
pies the  premises ;  and  the  same  then  would  be  liable  for 
a  debt  contracted  before  such  occupancy,  after  the  debtor's 
other  property  shall  have  been  exhausted.^ 

8  a.  The  constitution  of  Kansas,  art.  15,  §  9,  extends  the 
homestead  exemption  to  premises  occupied  as  a  residence  by 
the  family  of  the  owner,  but  excepts  taxes  and  what  is  due 
for  jDurchase-money  or  improvements  made  upon  the  premises  ; 
and  the  statute  contains  a  similar  provision.'^ 

8  h.  The  statutes  of  Kentucky  exempt  a  homestead  to  the 
owner  of  the  premises,  whether  man  or  woman,  who  is  a 
5owa  ^cZe  housekeeper.  Upon  the  death  of  the  owner,  hus- 
band, or  wife,  it  goes  to  the  widow  or  widower,  as  the  case 
may  be,  for  his  or  her  use  and  that  of  the  children  unmarried 
and  under  age.^ 

8  c.  By  the  statutes  of  Louisiana  a  homestead  exemption 
extends  to  premises  occupied  as  a  residence,  and  owned  hona 
fide  by  one  having  a  family,  or  father,  or  mother,  or  person 

1  Elston  V.  Robinson,  23  Iowa,  208. 

2  Nicholas  v.  Purczell,  21  Iowa,  265;  Dodds  v.  Dodds,  26  Iowa,  310. 
8  Stewart  v.  Brand,  23  Iowa,  481. 

*  Williams  v.  Swetland,  10  Iowa,  51. 

6  Whalen  v.  CaJman,  11  Iowa,  226;  Parsons  v.  Livingston,  11  Iowa,  104. 

6  Cole  V.  Gill,  14  Iowa,  527,  530 ;  Hale  v.  Heaslip,  16  Iowa,  452  ;  Campbell 
V.  Ayres,  18  Iowa,  255  ;  Stevens  v.  Myers,  11  Iowa,  184 ;  Hyatt  v.  Spearman,  20 
Iowa,  613. 

7  Gen.  Stat.  c.  38,  §  1,  1808.  8  Qen.  Stat.  1873,  433,  434. 


CH.  IX.  §  2.]  ESTATES    BY   MARRIAGE.  349 

dependent   upon   liira   for  support,  and  excepts   taxes   and 
claims  for  purchase-money  of  the  estate.^ 

9.  In  Maine  he  must  own  the  property  and  be  a  house- 
holder in  actual  occupation  of  the  same.^ 

10.  In  Massachusetts  he  must  be  a  householder,  having  a 
family  occupying  the  premises  as  a  residence.^  Nor  does  he 
lose  it  by  the  death  or  absence  of  his  wife  and  children,  be- 
cause he  may  adopt  others  as  members  of  his  household.^  An 
unmarried  woman,  without  children,  cannot  claim  it.^ 

11.  In  Michigan  he  must  be  the  owner  and  occupant  of  the 
homestead.^ 

12.  In  Minnesota  the  exemption  is  to  the  owner  and  occu- 
pant of  the  premises  as  a  residence.  This  may  be  the  debtor 
himself,  his  widow,  or  minor  children,  who  shall  be  the  occu- 
pants for  the  purposes  of  a  home.'' 

13.  In  Mississippi  it  is  to  "  the  head  of  a  family  ;  "  ^  and  the 
statute  of  1871  extends  it  to  every  citizen,  male  or  female, 
being  a  householder,  having  a  family,  the  owner  and  occu- 
pant of  the  estate  claimed  as  a  homestead  ;  and  on  the  death 
of  the  owner  it  descends  to  his  widow  and  children  during  the 
minority  of  children,  and  till  the  death  of  the  widow,  some 
one  of  them  being  an  occupant  thereof.^ 

13  a.  In  Missouri,  every  housekeeper  or  head  of  a  family 
holds  exempt  the  premises  used  by  a  householder  as  a  home- 
stead ;  and  the  same,  at  his  death,  passes  to  his  widow  and 
his  children  till  of  age.^° 

13  h.  In  Nebraska  the  exemption  is  to  an  owner  and  occu- 
pant who  is  a  resident  and  head  of  a  family,  descending  at 
his  death  to  his  heirs  at  law,^^  whether  alien  or  citizen.^^ 

1  Rev.  Stat.  1870,  §  691. 

2  Rev.  Stat.  c.  81,  §  37 ;  Rev.  Stat.  1871,  c.  81,  §  60.  8  Qen.  Stat.  c.  104. 
*  Silloway  v.  Brown,  12  Allen,  34;  Doyle  v.  Coburn,  6  Allen,  71. 

5  Woodworth  v.  Comstock,  10  Allen,  425 ;  Woodbury  v.  Luddey,  14  Allen,  6. 

6  Beecher  v.  Bakly,  7  Mich.  488. 

7  Folsom  V.  Carli,  5  Minn.  337 ;  Tillotson  v.  Millard,  7  Minn.  520 ;  Kresin  v. 
Man,  15  Minn.  118,  119. 

8  Morrison  v.  McDaniel,  30  Miss.  217. 

9  Smith  V.  Wells,  46  Miss.  71 ;  Campbell  v.  Adair,  45  Miss.  170. 

10  Stat,  of  1865.  11  Gen.  Stat.  1873,  p.  616. 

12  People  V.  McCloy,  2  Neb.  7. 


350  LAW    OP   REAL   PROPERTY.  [bOOK   I. 

13  e.  In  New  Jersey  it  is  to  a  householder  having  a  family 
who  is  the  owner  and  occupant  thereof  as  a  residence,  and 
continues  to  the  widow  and  family,  if  occupants  thereof,  until 
the  youngest  child  is  of  age  and  the  widow  has  deceased.^ 

14.  In  New  York  it  is  a  householder,  and  it  is  to  him  for 
a  residence.  And  by  householder  is  meant  the  head,  master, 
or  person  who  has  charge  of  and  provides  for  a  family .^ 

14  a.  In  Nevada  the  exemption  is  to  the  heads  of  a  family, 
not  including  persons  unmarried  unless  they  have  minor 
brothers  or  sisters,  or  children  of  brothers  or  sisters,  or  father 
or  mother,  or  both,  or  grandparents,  or  unmarried  sisters 
living  with  them.  Upon  the  death  of  husband  or  wife,  it 
goes  to  the  survivor  and  his  or  her  legitimate  children." 

15.  In  New  Hampshire  it  is  to  the  head  of  a  family  occu- 
pying the  premises  as  a  residence.^  And  it  has  been  held 
that  a  widower  with  a  child  living  with  him  is  a  "  head  of  a 
family."  ^ 

16.  In  North  Carolina  it  is  to  the  owner  and  occupant  of 
the  premises  who  is  a  resident  of  the  State,  and  to  his  widow, 
if  he  leaves  one,  during  her  widowhood  ;  if  she  have  children, 
during  the  minority  of  the  children  or  any  of  them  ;  and  if 
she  have  no  children,  it  inures  to  her  in  her  own  right.  Act- 
ual occupancy  as  a  residence  is  essential  to  its  being  exempted 
as  a  homestead.^ 

17.  In  Ohio,  widows  and  widowers  having  an  unmarried 
child  living  with  them  as  a  part  of  their  family,  have  this 
right,  as  do  husbands  and  wives  living  together  without  chil- 
dren.    The  exemption  is  to  the  head  of  a  family.'^ 

18.  In  South  Carolina  and  Tennessee  the  exemption  is  in 
favor  of  "  the  head  of  a  family,"  and  in  Texas  to  "  a  family," 
which  her  courts  hold  to  be  a  collective  body  of  persons  liv- 
ing together  within  the  same  curtilage,  subsisting  in  common, 

1  Dig.  1868. 

2  3  Rev.  Stat.  647 ;  Griffin  v.  Sutherland,  14  Parb.  458 ;  4  Stat,  at  Large, 
Pt.  3,  c.  260,  p.  632. 

8  Comp.  Laws,  c.  186.  *  Comp.  Stat.  N.  H.  c.  196,  §  1. 

5  Barney  v.  Leeds,  51  N.  H.  266. 

6  Const.  1868,  art.  10,  §  2  ;  Rev.  Stat.  1873. 
•?  Stat,  of  1860  and  1868. 


CH.  IX.  §  2.] 


ESTATES   BY   MARRIAGE. 


351 


directing  their  attention  to  a  common  object.^  A  single  man 
without  servants  or  other  persons  living  with  him  cannot 
claim  a  homestead  exemption.^ 

19.  In  Vermont  the  exemption  is  to  a  housekeeper  or  head 
of  a  family ;  ^  and  the  same  is  the  law  of  Virginia.* 


DIVISION   II. 


IN   WHAT   HOMESTEAD   EIGHTS   MAY   BE   CLAIMED. 


1.     Occupancy  and  residence  essential  to  the  right. 
la,  16.  What  is  exempted  in  Alabama  and  Arkansas. 
2,  2a.  What  is  exempted  under  this  right  in  California  and  Florida. 
8.     What  is  exempted  in  Georgia. 

4.  What  is  exempted  in  Illinois. 

5.  What  is  exempted  in  Indiana. 

6,  6a,  6  b,  6  c.  Wliat  is  exempted  in  Iowa,  Kansas,  Kentucky,  and  Louisiana. 
7,  7  a.  What  is  exempted  in  Maine  and  Maryland. 

8.  Wliat  is  exempted  in  Massachusetts. 

9.  What  is  exempted  in  Michigan. 
10.     What  is  exempted  in  Minnesota. 

11,  11a,  116.  Wliat  is  exempted  in  Mississippi,  Missouri,  and  Nebraska. 

12,  12  a,  12  6.  What  is  exempted  in  New  Hampshire,  New  Jersey,  and  Nevada. 

13,  13  a.  What  is  exempted  in  New  York  and  North  Carolina. 

14.  What  is  exempted  in  Ohio. 

15.  What  is  exempted  in  Pennsylvania. 

16, 16  a.  What  is  exempted  in  South  Carolina  and  Tennessee. 

17.     What  is  exempted  in  Texas. 
18,  18  a.  What  is  exempted  in  Vermont  and  Virginia. 

19     What  is  exempted  in  Wisconsin. 

20.  Nature  and  extent  of  ownership  requisite. 

21.  What  is  exempted  from  execution  in  the  other  States. 


1.  When,  in  the  second  place,  it  is  considered  of  what 
property  a  homestead  right  may  be  predicated,  although 
varying  in  different  States  in  the  value  exempted,  and  the 
extent  and  nature  of  the  ownership  required,  it  Avill  be  found 
that  in  some  respects  the  laws  of  all  the  States  substantially 


1  S.  C.  Constitution,  art.  2,  §  32;  Rev.  Stat.  1873;  Tenn.  Code,  1858,  art. 
2107  ;  1868,  c.  86  ;  Texas  Constitution,  §  22  ;  Stat.  art.  3798,  3928  ;  Homestead 
cases,  31  Tex.  Rep.  680. 

2  Homestead  cases,  31  Tex.  678.  3  Stat.  Vt.  1862,  and  appendix,  1870 
*  Constitution,  Va.  1869,  art.  40  ;  22  Am.  Law  Reg.  625. 


352  LAW  OF  REAL  PROPERTY.  [BOOK  1. 

agree,  especially  in  requiring  the  premises  to  be  occupied  for 
family  purposes  as  a  home  b}^  one  who  is  a  resideiit  thereon, 
and  makes  it  the  dwelling-place  of  his  family.  This  principle 
runs  through  all  the  cases,  though  a  difference  of  construction 
will  be  found  to  have  been  applied  in  limiting  what  is  em- 
braced in  the  term  homestead.  And  although  the  bankrupt 
laws  of  the  United  States  are  required  by  the  Constitution  to 
be  uniform,  what  is  meant  by  uniformity  relates  to  the  States, 
and  not  to  State  exemption  laAvs.  It  means  that  what  re- 
mains after  such  exemptions  shall  be  equally  distributed  among 
creditors.^ 

1  a.  In  Alabama,  the  amounts  exempted  under  the  home- 
stead laws  have  been  essentially  changed  from  time  to  time, 
which  has  raised  the  question,  whether  an  increased  exemp- 
tion was  constitutional  as  to  existing  debts.^  But  the  consti- 
tution of  1868  exempts  eighty  acres  of  land  and  the  dwelling 
thereon,  if  without  the  limits  of  a  city,  town,  or  village,  or 
any  lot  in  a  city,  town,  or  village,  with  a  dwelling  owned  and 
occupied  by  a  resident  of  the  State  not  exceeding^  in  value 
$2,000.3  But  it  does  not  seem  necessary  that  it  should  be 
occupied  hy  the  one  claiming  the  exemption.  "  If  he  can 
make  a  better  use  of  it  than  to  reside  on  it,  he  is  at  liberty  to 
do  so ;  "  and  it  may  be  in  separate  parcels.^ 

1  h.  The  exemption  in  Arkansas  is  not  to  exceed  one  hun- 
dred and  sixty  acres  of  land,  or,  if  in  a  city  or  town,  a  city 
or  town  lot  which  is  the  residence  of  the  householder  claim- 
ing it.^  Under  it  he  may  claim  $5,000  in  real  property.^  By 
"  city  or  town  lot "  is  meant  the  lot  on  which  the  debtor  lives, 
irrespective  of  the  lines  by  which  the  lots  of  the  city  were  laid 
out.  The  statute  is  held  to  be  remedial  in  its  character,  and 
is  to  be  liberally  construed.^  Homestead  may  be  claimed  in 
lands  held  in  common.^ 

2.  In  California  the  exemption  is  of  a  lot  of  land  and  a 
dwelling-house  thereon,  and  its  appurtenances  not  exceeding 

1  fn  re  Beckerkord,  19  Am.  Law  Reg.  59. 

2  Sneider  v.  Heidelbarger,  45  Ala.  134.  ■^  Constitution,  art.  14,  §  2. 
<  Pizzala  v.  Campbell,  46  Ala.  40 ;  Milton  v.  Andrews,  45  Ala.  454. 

6  Constitution,  1868,  art.  12,  §  3 ;  Stat.  1858,  c.  68 ;  27  Ark.  Rep.  657. 

6  19  Am.  L.  Reg.  4. 

T  Wassail  V.  Tunnah,  25  Ark.  104.        »  Greenwood  v.  Maddox,  27  Ark.  648. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  353 

five  thousand  dollars  in  value. ^  It  must  be  a  dwelling-place 
where  the  family  permanentl}'-  reside.^  Homestead  does  not 
depend  upon  the  nature  of  the  title ;  a  naked  possession  will 
be  sufficient  as  to  everybody  but  the  rightful  owner.  It 
will  be  exempt  from  a  forced  sale.  Declaring  it  a  homestead 
does  not  protect  it  against  the  true  owner.^  And,  accord- 
ingly, it  was  held  not  to  embrace  a  store,  office,  billiard-room, 
bar-room,  or  theatre,  gas-factory  or  storehouse,  although  the 
family  might  occupy  rooms  upon  the  second  floor  of  such 
building.'*  The  occupancy  must  be  with  an  intent  to  make  it 
a  homestead.^  It  need  not  be  in  a  compact  form,  and  may  be 
intersected  by  highways.  There  is  no  limit  as  to  the  quantity, 
only  as  to  its  uses  and  value.  Nor  is  it  inconsistent  with  its 
being  a  place  of  business  by  the  family.^  Where,  therefore, 
the  owner  of  premises  had  a  wife  in  another  State  from  which 
he  had  removed,  he  was  held  not  to  have  gained  for  them  the 
character  of  homestead,  until  he  had  removed  his  Avife  and 
commenced  actually  occupying  the  same  with  her.'''  So, 
where,  during  the  absence  of  his  wife,  a  husband  acquired 
an  estate,  it  was  held  that  no  right  of  homestead  attached 
thereto  until  she  returned,  and  they  began  together  actu- 
ally to  occupy  the  same.^  And  if  a  man  owning  an  estate 
marry  a  wife  and  cany  her  to  live  upon  it,  it  becomes  a 
homestead.  But  if  he  marry  a  w^oman  having  lands,  and  go 
to  live  with  her  upon  her  lands,  it  is  said  to  be  doubtful  if 
such  an  occupancy  gives  to  it  the  character  of  a  homestead.^ 
It  was  no  objection  that  the  premises  were  a  hotel  kept  by 
the  owner  who  claimed  the  right  of  homestead,  although  he 
entertained  boarders,  lodgers,  and  travellers  therein.^^  Citi- 
zenship is  not  requisite.      A  residence  is   sufficient  to  en- 

1  Wood's  Dig.  483,  484.     McDonald  v.  Badger,  23  Cal.  393. 

2  Cook  V.  McChristian,  4  Cal.  24. 

3  Spencer  v.  Geissman,  37  Cal.  96  ;  Brooks  v.  Hyde,  37  Cal.  366. 

*  Reynolds  v.  Pixley,  6  Cal.  165;  Ackley  v.  Chamberlain,  16  Cal.  181;  Riley 
V.  Pehl,  23  Cal.  74. 

6  Holden  v.  Pinney,  6  Cal.  234. 

6  Estate  of  Delaney,  37  Cal.  176. 

V  Cary  v.  Tice,  6  Cal.  630 ;  Benedict  v.  Bunnell,  7  Cal.  246. 

8  Rix  V.  McHenry,  7  Cal.  91 ;  Elmore  v.  Elmore,  10  Cal.  226. 

9  Revalk  v.  Kraemer,  8  Cal.  71 ;  Riley  v.  Pelil,  23  Cal.  74. 
1"  Ackley  v.  Chamberlain,  sup. 

VOL.  I.  23 


354  LAW  OF  REAL  PROPERTY.  [bOOK  L 

title  one  to  claim  a  homestead.^  It  need  not  be  a  permanent 
residence,  but  there  must  be  an  actual  occupancy  when  it  is 
set  out ;  2  and  the  homestead  may  be  set  out  of  lands  held  in 
joint-tenancy  or  by  tenancj^  in  common,  though  held  other- 
wise under  an  earlier  statute.^  The  only  test  is  its  use  and 
its  value.  Its  use  must  be  as  a  place  of  residence  for  the 
family.  But  it  does  not  affect  it  as  a  homestead,  if  it  is  also 
a  place  of  business.  The  limit  is  that  of  value,  but  not  of 
extent.'*  It  will  be  valid  as  a  homestead  against  all  the 
world  but  the  real  owner,  though  the  one  claiming  it  holds 
it  tortiously.^  Homestead  cannot  be  claimed  of  estates  held 
in  partnership.*^ 

2  a.  By  the  constitution  of  Florida,  the  exemption  of  home- 
stead extends  to  one  hundred  and  sixty  acres  of  land,  or  half 
an  acre  within  an  incorporated  city  or  town,  owned  by  the 
head  of  a  family  residing  in  the  State.  And  w^here  the  prop- 
erty is  in  a  city  or  town,  it  is  not  to  extend  to  any  buildings 
other  than  the  residence  or  business  house  of  the  owner.''' 

3.  In  Georgia  the  exemption  originally  extended  to  fifty 
acres  of  land  to  the  head  of  the  family,  and  five  acres  to  each 
of  his  or  her  children  under  the  age  of  fifteen  years.  But  if 
the  homestead  was  in  a  city,  town,  or  village,  it  was  not  to 
exceed  two  hundred  dollars  in  value.^  Cotton  and  woollen 
factories,  mills,  and  machinery  propelled  by  water,  were  ex- 
cluded from  this  exemption.^  But  by  the  constitution  of  1868, 
art.  7,  §  1,  instead  of  the  prior  provision  as  to  homestead,  it  is 
competent  for  the  head  of  a  family,  or  the  guardian  or  trustee 
of  a  family  of  minor  children,  if  he  prefers  it,  to  claim  a  home- 
stead of  $2,000  in  specie. i<^ 

4.  In  Illinois,  it  covers  the  lot  of  ground  and  the  buildings 
thereon  occupied  as  a  residence,  of  a  value  not  exceeding  one 

1  Dawley  v.  Ayers,  23  Cal.  110. 

2  Constitution,  art.  11,  §  15 ;  Stat.  1868,  p.  116  ;  Prescott  v.  Prescott,  45  Cal.  58. 
8  Stat.  1868 ;  Seaton  v.  Son,  32  Cal.  481. 

*  Gregg  V.  Bostwick,  33  Cal.  220;  Mann  v.  Rogers,  35  Cal.  319  ;  Estate  of 
Delaney,  37*  Cal.  176. 

6  Brooks  V.  Hyde,  37  Cal.  366.  6  Kingsley  v.  Kingsley,  39  Cal.  665. 

7  Const.  1868,  art.  9,  §  1 ;  19  Am.  L.  Reg.  4. 

8  Davenport  v.  Alston,  14  Ga.  271 ;  Code,  §  2013. 

9  Cobb's  Dig.  389,  390.  lO  19  Am.  L.  Reg.  5. 


CH.  IX.  §  2.]  ESTATES   BY   MAERIAGE.  355 

thousand  dollars.^  But  it  does  not  extend  to  two  lots,  though 
of  a  less  value  than  the  prescribed  sum,  where  the  dwelling- 
house  is  upon  one  of  these,  and  the  other  is  used  to  supply  the 
occupant  of  the  first  with  firewood.  Whether  land  contiguons 
to  that  upon  which  is  the  dwelling-house  is  a  part  of  the  home- 
stead, is  a  question  for  the  jury.^  But  the  right  cannot  exist 
beyond  the  duration  of  the  estate  of  the  owner  in  the  prem- 
ises. If  therefore  his  title  expires  during  his  life,  his  widow 
can  claim  no  right  in  the  premises.  Nor. can  the  right  of 
homestead  attach  to  a  building  standing  upon  another's  land.^ 
It  is  enough,  however,  that  he  own  the  land  in  fee  for  life  or 
a  term  of  years,  or  that  he  holds  the  land  under  a  bond  for  a 
deed.^  But  he  can  have  but  one  homestead;  and  he  must, 
moreover,  occupy  it  to  make  it  such ;  purchasing  it  for  that 
purpose  is  not  enough.^  To  constitute  a  homestead,  there 
must  be  a  dwelling-place  upon  the  premises.  But  it  may  be  a 
cabin  or  a  tent,  if  it  be  the  home  of  the  famil3^^  And  under 
that  term  may  be  included  a  dwelling-house,  smoke-house, 
stable,  and  house-lot,  and  ground  connected  therewith  and 
used  for  domestic  and  family  purposes.  But  it  would  exclude 
a  store  or  warehouse,  and  grounds  occupied  for  the  business 
done  in  them.'''  But  if  once  gained,  a  continuous  occupation 
as  a  residence  is  not  essential  to  maintaining  the  homestead 
right  in  the  premises.^ 

5.  In  Indiana,  the  exemption  is  of  three  hundred  dollars 
value  of  property  ;  and  this  may  be  of  real  or  personal  estate, 
as  the  debtor  may  elect,  to  be  designated  by  him,  or,  in  his 
absence,  by  his  wife.^     But  a  debtor  cannot  claim  exemption 

1  Stat.  111.  650 ;  Stat.  1869. 

2  Walters  v.  People,  18  111.  194 ;  s.  c.  21  111.  178,  179. 

3  Brown  v.  Keller,  32  111.  154. 

*  Blue  V.  Blue,  38  111.  18;  Tomlin  v.  Hilgard,  43  111.  302;  Conklin  v.  Foster, 
57  111.  104. 

6  TousviUe  v.  Pierson,  39  HI.  453. 

6  Kitchen  V.  Burgwin,  21  111.  40  ;  Deere  v.  Chapman,  25  HI.  612. 

^  Reinback  v.  Walter,  27  111.  394. 

8  Walters  v.  People,  sup. ;  Miller  v.  Marckle,  27  111.  405 ;  Vanzant  v.  Vanzant, 
23  lU.  643. 

9  2  Stat.  Ind.  367 ;  State  v.  Melogue,  9  Ind.  196 ;  Const,  art.  1,  §  42 ;  Stat. 
1862  and  1870. 


356  LAW   OF  REAL   PROPERTY.  [BOOK   I. 

from  levy  of  land  belonging  to  his  wife,  or  of  which  she  and 
not  he  holds  the  deed.^ 

6.  In  Iowa,  it  extends  to  the  house  made  use  of  by  the 
owner,  or  if  he  have  two,  the  one  which  he  may  elect,  together 
with  one  or  more  contiguous  lots  with  the  buildings  thereon, 
if  habitually  occupied  in  good  faith  as  a  part  of  the  homestead, 
not  to  exceed  half  an  acre  if  within  a  town,  or  forty  acres  out- 
side of  any  town  plot,  provided  the  whole  do  not  exceed  five 
hundred  dollars  in  value.  In  addition  to  this,  it  includes  a 
shop  or  other  buildings  properly  appurtenant  to  the  homestead 
and  used  with  them  by  the  owner  in  the  prosecution  of  his 
business,  not  to  exceed  three  hundred  dollars  in  value.-  It  may 
be  secured  to  the  owner  of  the  soil  on  which  a  building  of  three 
stories  stands,  and  be  confined  to  the  second  and  third  story, 
leaving  the  first  story  and  cellar  under  it  subject  to  sale  on  ex- 
ecution, to  be  held  by  a  purchaser  as  long  as  it  is  tenantable. 
The  tenements,  however,  would  not  be  regarded  as  held  in 
common,  but  as  being  adjacent  to  each  other.^  And  if  the 
forty  acres  be  of  less  value  than  five  hundred  dollars,  it  may 
be  increased  in  quantity  to  that  value.*  In  order  to  be  exempt 
as  a  part  of  the  homestead,  it  must  be  habitually  and  in  good 
faith  used  as  such.^  Where,  therefore,  one  owned  a  building 
in  a  part  of  which  he  resided,  and  parts  of  it  he  rented  to 
others  for  stores,  it  was  held  that  only  such  parts  as  he  him- 
self thus  occupied,  and  such  as  were  used  with  these  as  prop- 
erly appurtenant  thereto,  were  exempt.  The  stores  were  not, 
since  the  object  of  the  statute  is  to  protect  and  preserve  a 
home  for  the  family,  and  not  stores,  offices,  shops,  or  hotels, 
rented  to  others,  and  occupied  by  them.^  Nor  does  the  right 
attach,  till  the  premises  are  actually  occupied  as  a  home. 
Mere  intention  to  occupy  is  not  enough,  nor  setting  out  the 
homestead  and  recording  it,  unless  occupied  as  a  home  by  the 
family.'^     An  occupation  of  the  premises,  and  a  use  of  a  house 

1  Holman  v.  Martin,  12  Ind.  553. 

2  Code,  p.  197 ;  Code  of  1873.  3  McCormic  v.  Bishop,  28  Iowa,  240. 
<  Thorn  v.  Thorn,  14  Iowa,  49.  ^  Code,  p.  197. 

6  Rhodes  v.  McCormick,  4  Iowa,  368 ;  Kurz  v.  Brusch,  13  Iowa,  371. 
''  Christy  v.  Dyer,  14  Iowa,  440 ;  Davis  v.  Kelley,  14  Iowa,  525 ;  Cole  v.  Gill, 
14  Iowa,  530. 


CH.  IX.  I  2.]  ESTATES   BY   MARRIAGE.  357 

upon  the  same,  are  essential  to  the  investmg  of  an  estate  with 
the  character  of  a  homestead. ^ 

6  a.  In  Kansas,  the  constitution  and  statutes  of  the  State 
exempt  a  homestead  of  one  hundred  and  sixty  acres  of  farm- 
ing hind,  or  an  acre  within  an  incorporated  town  or  city,  if 
occupied  by  the  owner  as  a  residence  of  the  family .^  Only 
one  acre  within  the  limits  of  a  city  is  exempt,  whether  worth 
ten  or  ten  thousand  dollars,  whether  he  live  on  it  or  live  on  an 
adjacent  lot  which  extends  into  and  includes  a  part  of  the 
lands  within  the  city.  But  one  hundred  and  sixty  acres  of 
farming  land  are  exempt.^  If  one  purchase  an  estate  as  a 
homestead  and  move  on  to  it  within  a  reasonable  time  after 
such  purchase,  he  will  hold  it  as  such  from  the  date  of  the 
purchase.* 

6  b.  The  exemption  in  Kentucky  is  of  so  much  land,  includ- 
ing the  dwelling-house  standing  thereon,  as  does  not  exceed 
one  thousand  dollars  in  value. ^ 

6  c.  In  Louisiana  it  extends  to  one  hundred  and  sixty 
acres  of  land,  with  the  building  and  improvements,  occupied 
as  a  residence  by  the  owner  thereof,  which,  with  sundry  enu- 
merated articles  of  personal  projDerty,  are  not  to  exceed  two 
thousand  dollars.^ 

7.  In  Maine,  the  exemption  is  of  a  lot  of  land  and  dweUing- 
house,  and  outbuildings  thereon,  not  exceeding  five  hundred 
dollars  in  value.' 

7  a.  By  the  laws  of  Maryland,  a  debtor  may  select  real  or 
personal  estate  of  the  value  of  one  hundred  dollars,  to  be  as- 
certained by  appraisal.^ 

8.  In  Massachusetts,  it  may  be  a  farm  or  lot  of  land  and 
buildings  thereon,  owned  and  possessed  by  lease  or  otherwise, 
occupied  by  the  debtor  as  a  residence,  not  exceeding  eight 
hundred  dollars  in  value  ;  and  the  widow  may  claim  it,  though 
she  rent  a  part  or  all  of  the  premises.^     The  right  does  not 

1  Elston  V.  Robinson,  23  Iowa,  208. 

2  Const,  art.  15,  §  9  ;  Gen.  Stat.  c.  38,  §  1. 

5  Sarahas  v.  Fenlon,  5  Ivans.  506.  *  Monroe  v.  May,  9  Kans.  475. 

6  Stat.  ed.  1873,  433  6  Rgy.  Stat.  1870,  §  691. 

7  Rev.  Stat.  c.  81,  §  37-41 ;  Rev.  Stat.  1871,  c.  81,  §  00.  »  Stat.  1861. 
9  Gen.  Stat,  c,  104;  Mercier  v.  Chace,  11  Allen,  194. 


85b  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

attach  until  tlie  owner  has  a  deed  of  the  estate  ;  nor  would  it 
retroact  to  the  date  of  the  bond  under  which  the  conveyance 
is  made,  though  the  deed  be  delivered  in  accordance  with  its 
provisions.^  Nor  does  the  right  attach  in  favor  of  one  owning 
an  estate  upon  which  he  has  begun  to  erect  a  dwelling-house, 
until  he  has  begun  to  occupy  that  as  a  householder  for  a  resi- 
dence, although  he  may  fomially  have  declared  his  intention 
to  hold  it  as  a  homestead.^  But  if  an  estate  is  under  an  ex- 
isting mortgage,  when  made  a  homestead,  it  becomes  exempt 
as  such,  except  as  to  such  mortgage  ;  nor  can  such  right  be 
created  so  as  to  affect  existing  mortgages,  liens,  or  incum- 
brances.^ And  where  a  mortgagee  having  an  existing  mort- 
gage, gave  it  up  and  took  a  new  one  on  the  same  estate,  it 
was  held  not  to  let  in  the  wife's  claim  to  homestead  as  against 
this  new  mortgage,  the  taking  of  the  new  being  a  part  of  the 
transaction  of  giving  up  the  old  one.*  The  right  may  attach 
to  an  estate  kept  by  the  owner  as  a  hotel  in  the  country, 
though  it  might,  perhaps,  be  otherwise  in  a  city  ;  ^  or  to  an  en- 
tire house,  though  the  owner  lease  some  of  the  rooms.^  It  does 
not  attach  to  land  held  in  common  and  undivided.''  Nor  will 
it  cover  land  lying  two  and  a  half  miles  from  the  homestead 
farm  of  the  owner,  and  used  by  him  for  pasturing  his  cattle.^ 
9.  The  constitution  of  Michigan  exempts  a  homestead  if 
not  exceeding  forty  acres,  with  a  dwelling-house  thereon,  if  in 
an  agricultural  district,  and  if  in  a  city  or  town,  any  lot  or 
parts  of  a  lot  equal  thereto,  with  a  dwelling-house  thereon, 
the  whole  in  either  case  not  to  exceed  fifteen  hundred  dollars 
in  value .^  But  it  is  essential  that  the  premises  should  con- 
tain a  dwelling-house  and  appurtenances,  and  should  be 
owned  and  occupied  by  him,  as  a  homestead,  who  sets  up  the 
right.^*^  Where,  therefore,  the  owner  of  a  lot  of  land  erected 
thereon  a  double  house,  and  rented  one  of  the  tenements,  and 

1  Thurston  v.  Haddocks,  6  Allen,  428.  2  Lee  v.  Miller,  11  Allen,  38. 

3  Gen.  Stat.  c.  104,  §  4,  4  Burns  v.  Thayer,  101  Mass.  426. 

6  Lazell  V.  Lazell,  8  Allen,  575.  ^  Mercier  v.  Chace,  11  Allen,  194. 

T  Thurston  v.  Maddocks,  6  Allen,  427. 

8  Adams  v.  Jenkins,  16  Gray,  146. 

9  Const,  art.  16 ;  Comp.  Laws,  1871,  c.  193 ;  Dye  v.  Mann,  10  Mich.  291  ; 
McKee  v.  Wilcox,  11  Mich.  360. 

10  Beecher  v.  Baldy,  7  Mich.  488  ;  Coolidge  v.  Wells,  20  Mich.  79,  87. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  359 

occupied  the  other,  he  was  entitled  to  exemption  as  to  one, 
and  not  as  to  the  other,  although  both  did  not  exceed  in  value 
fifteen  hundred  dollars,  and  the  back-yard  of  the  buildings 
was  occupied  by  the  tenants  of  the  house  in  common.^  A 
husband  may  have  a  homestead  in  property  to  which  lie  has 
only  an  equitable  title ;  nor  does  he  lose  it  by  making  use  of 
the  rooms  in  the  dwelling-house  for  a  shop,  post-office,  or  the 
like.  And  the  estate  of  the  wife  occupied  by  her  and  her 
husband  may  be  exempt  as  a  homestead.^ 

10.  In  Minnesota,  the  exemption  by  the  constitution  is 
"  a  reasonable  amount  of  property."  And  this  was,  at  first, 
limited  by  statute  to  land  and  buildings  of  the  value  of  one 
thousand  dollars.  But  afterwards  it  was  extended  to  include 
one  lot,  if  in  a  city  or  town,  or  eighty  acres  in  an  agricultural 
district,  measured  by  area  and  not  value. ^  It  is  essential  to 
its  being  exempted,  that  it  should  be  occupied  by  the  debtor 
or  his  widow,  or  minor  children,  and  continue  so  to  be.  But 
it  matters  not  how,  so  long  as  it  is  the  place  of  their  residence, 
and  has  a  house  on  it.  If  he  lets  them,  and  resides  elsewhere, 
or  leaves  them  vacant,  they  cannot,  during  such  time,  be  a 
homestead.^  The  premises,  therefore,  must  have  upon  them 
a  dwelling-house  and  appurtenances,  and  must  be  owned  by 
the  occupant,  who  is  a  resident  of  the  State,  and  he  alone  can 
select  the  exempted  premises,  or  set  up  the  exemption.^  But 
the  exemption  extends  to  a  house  occupied  by  the  debtor, 
though  not  his  own  property,  if  he  claims  it  as  a  homestead.^ 
But  to  sustain  a  homestead  exemj^tion,  the  owner  must  have 
or  must  have  had  his  residence  thereon  ;  nor  can  he  claim  it  in 
a  lot  which  touches  his  homestead  at  one  corner  only  ;  ^  nor  in 
an  undivided  half  of  two  lots  which  together  do  not  exceed 
one  city  lot.^ 

11.  In  Mississippi,  two  hundred  and  forty  acres  of  land  are 

1  Beecher  v.  Baldy,  sup. ;  Dyson  v.  Sheley,  11  Mich.  528. 

2  Orr  V.  Shraft,  22  Mich.  264. 

8  Tillotson  V.  Millard,  7  Minn.  513 ;  Sumner  v.  Sawtelle,  8  Minn.  321 ;  Cagel 
V.  Mickow,  11  Minn.  475. 

4  Folsom  V.  Carii,  5  Minn.  337  ;  Kelly  v.  Bakee,  10  Minn.  154. 

5  Sumner  v.  Sawtelle,  sup. ;  Tillotson  v.  Millard,  sup. 
8  Stat.  187?. 

'  Kresin  v.  Mau,  15  Minn.  118,  119.  8  Ward  v.  Hahn,  16  Minn.  161. 


3G0  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

exempted,  including  the  dwelling-house  and  other  buildings 
on  a  farm  regardless  of  its  value  ;  and  if  in  a  city,  town,  or 
village,  real  and  personal  estate  comprising  the  proper  home- 
stead and  other  buildings  connected  therewith,  of  the  value  of 
four  thousand  dollars,  are  exempt  from  seizure,  levy,  and  sale, 
upon  execution,^  instead  of  what  had  previously  been  ex- 
empted. But  it  is  not  impressed  with  the  character  of  home- 
stead until  it  is  occupied  by  the  debtor ;  and,  as  a  general  rule, 
to  constitute  a  homestead,  there  must  be  a  continued  occupa- 
tion and  Use  of  the  premises  as  a  home  for  the  family,  though, 
in  some  cases,  an  occupancy  by  a  tenant  will  be  sufficient,  if 
the  family  are  not  in  a  situation  to  occupy  it  themselves,  as 
where  a  widow  died  leaving  an  infant  child  who  was  entitled 
to  a  homestead.2 

11  a.  In  ISIissouri,  the  law  exempts  a  dwelling-house  and 
appurtenances  used  and  occupied  as  a  homestead  ;  and  if  in  the 
country,  one  hundred  and  sixty  acres  of  land,  if  it  do  not  ex- 
ceed fifteen  hundred  dollars  in  value  ;  and  if  in  a  city  of  forty 
thousand  people,  not  more  than  eighteen  square  rods,  and  not 
exceeding  three  thousand  dollars.  If  in  a  city  of  a  less  num- 
ber of  inhabitants,  thirty  square  rods,  and  not  exceeding 
fifteen  hundred  dollars  in  value.^  Under  the  law  of  1864,  a 
less  amount  in  value  was  exempt.  And  it  was  held  that  a 
homestead  may  be  set  apart  in  leasehold  property  qf  a  debtor.' 

11  b.  The  exemption  in  Nebraska  is  of  a  homestead  con- 
sisting of  not  exceeding  one  hundred  and  sixty  acres,  with  a 
dwelling-house  thereon,  if  in  the  country.  If  in  a  city  orin^ 
corporated  town  or  village,  any  quantity  of  land  not  exceeding 
two  lots,  or  one  lot  if  not  exceeding  twenty  acres  owned  and 
occupied  by  the  debtor,  a  resident  and  head  of  a  family.^  It 
extends  to  aliens  as  well  as  citizens.^ 

12.  In  New  Hampshire,  the  exemption  extends  only  to  an 
estate  worth  five  hundred  dollars,  which  the  owner  occupies 
as  his  domicil  or  home,  and  does  not  affect  lots  and  tenements 


1  Laws,  1865,  p.  137  ;  19  Am.  L.  Reg.  11,  12 ;  Morrison  v.  McDaniel,  30  Miss. 
217 ;  Johnson  u.  Richardson,  33  Miss.  462. 

2  Campbell  v.  Adair,  45  Miss.  170. 

3  Gen.  Stat.  1865,  c.  111.  *  In  re  Beckerkord,  19  Am.  L.  Reg.  58. 
5  Gen.  Stat.  1873,  p.  616.  «  People  v.  McClay,  2  Neb.  7. 


CH.  IX.  §  2.J  ESTATES   BY   MARRIAGE.  861 

not  occupied  personally  by  the  head  of  the  family.  The 
homestead  right,  in  other  words,  protects  only  the  home,  the 
house,  and  the  adjacent  lands,  where  the  head  of  the  family 
dwells,  as  a  family  homestead,  though  these  may  be  of  less 
value  than  the  sum  of  five  hundred  dollars.^  But  he  may 
embrace  a  parcel  of  land  on  which  he  cuts  hay  for  a  cow, 
though  a  mile  from  his  dwelling-house,  if  used  with  that,  and 
if  both  do  not  exceed  five  hundred  dollars  in  value.^ 

12  a.  The  law  of  New  Jersey  exempts  the  lot  and^building 
thereon  standing,  occupied  as  a  residence  and  owned  by  the 
debtor  who  is  a  householder,  of  the  value  of  one  thousand 
dollars. 2 

12  b.  The  homestead  exempted  by  the  law  of  Nevada  con- 
sists of  land  and  a  dwelling-house  not  exceeding  five  thousand 
dollars  in  value.  There  is  no  restriction  as  to  any  other  uses 
to  be  made  of  the  premises  if  occupied  for  a  homestead.* 
Erecting  a  house  and  residing  in  it  dedicates  it  as  a  homestead, 
though  large  enough  for  a  lodging-house  and  used  for  that 
purpose.^ 

13.  In  New  York,  the  lot  and  buildings  thereon  occupied  as 
a  residence  are  exempted  to  the  value  of  one  thousand  dol- 
lars.^ 

13  a.  In  North  Carolina,  the  exemption  is  of  every  home- 
stead and  the  dwelling-house  and  buildings  therewith  used, 
not  exceeding  one  thousand  dollars,  or  a  lot  in  a  city,  town,  or 
village,  with  a  dwelling-house  thereon,  owned  and  occupied 
by  a  resident  of  the  State,  of  the  value  of  one  thousand  dol- 
lars. And  an  occupancy  as  an  actual  homestead  is  essential 
to  its  being  exempted.''' 

14.  In  Ohio,  a  family  homestead  of  the  value  of  five  hun- 
dred dollars  is  exempt,  and  the  right  extends  to  lessees  and 
owners  of  buildings  standing  on  another's  land.^ 

1  Gen.  Stat.  1867,  c.  124 ;  Stat.  1868,  §  33-37 ;  Norris  v.  Moulton,  34  N.  H. 
894  ;  Hoitt  v.  Webb,  36  N.  H.  158  ;  Horn  v.  Tufts,  39  N.  H.  484 ;  Austin  v.  Stan- 
ley, 46  N.  H.  51. 

2  Buxton  V.  Dearborn,  46  N.  H.  43.  3  Dig.  1868. 

4  Const,  art.  4,  §  30  ;  Comp.  Laws,  1873,  §  186  ;  Clark  r.  Sliannon,  1  Nev.  568. 

5  Goldman  v.  Clark,  1  Nev.  607.  «  4  Stat,  at  Large,  Pt.  3,  c.  260,  p.  632. 
T  Const.  1868,  c.  10  ;  Rev.  Stat.  1873. 

8  Rev.  Stat.  1145;  Stat.  1860,  1868. 


362  LAW   OP   REAL   PROPERTY.  [BOOK    I. 

15.  In  Pennsylvania,  a  right  of  homestead  does  not  attach 
to  any  land,  until  the  owner  shall  have  elected  to  hold  it  as 
such,  and  then  only  to  the  value  of  three  hundred  dollars. 
But  the  right  of  a  debtor's  widow  to  the  benefit  of  this  does 
not  depend  upon  the  condition  of  her  husband's  estate,  as  to 
being  solvent  or  not.^ 

16.  In  South  Carolina,  the  law  exempts  a  homestead  of 
one  thousand  dollars,  it  being  a  family  homestead.^ 

16  a.  In  Tennessee,  the  exemption  is  of  a  dwelling-house, 
outbuildings,  and  land  appurtenant,  occupied  as  a  homestead, 
of  the  value  of  one  thousand  dollars.^ 

17.  In  Texas,  the  exemption  is  of  two  hundred  acres,  if  in 
an  agricultural  district ;  but  if  situated  in  a  town  or  city,  of 
premises  worth  two  thousand  dollars.  The  value  of  the  for- 
mer is  not  restricted.  The  house  which  is  exempt  may  be  a 
palace,  a  cabin,  or  a  tent.*  The  city  or  town  exemption  may 
extend  to  one  or  more  lots,  contiguous  or  otherwise,  provided 
they  are  all  used  by  the  debtor  as  a 'homestead,  and  do  not 
exceed  the  prescribed  value,  and  are  occupied  or  destined  as  a 
family  residence.  Both  rural  and  city  homesteads  may  con- 
sist of  several  separate  parcels,  provided,  in  case  of  the  city 
homestead,  it  do  not  exceed  two  thousand  dollars.^  And 
if  one  acquire  a  homestead  of  less  value  than  two  thousand 
dollars,  he  may  add  to  it  to  the  extent  of  that  sum,  and  hold  it 
as  homestead.^  A  rural  homestead  does  not  cease  to  be  such 
by  being  embraced  in  a  city  or  town  by  its  growth  and  ex- 
pansion.''' A  homestead  may  be  acquired  by  a  tenant  in 
common,  in  an  estate  held  in  common  with  others.^  And  it 
would  embrace  the  office  of  a  lawyer,  or  the  shop  of  a  mechanic, 
if  it  stand  upon  a  city  lot,  though  it  be  upon  another  than 

1  Purdon's  Dig.  9th  ed.  433  ;  Compiler  v.  Compher,  25  Penn.  33  ;  Hill  v.  Hill, 
32  Penn.  514  ;  Dig.  1872. 

2  Const,  art.  2,  §  32;  Eev.  Stat.  1873;  Manning  v.  Dove,  10  Rich.  403. 
8  Stat.  1868,  c.  85,  and  1871,  c.  71 ;  19  Am.  L.  Reg.  14. 

*  Const,  art.  22  ;  Franklin  v.  Coffee,  18  Texas,  416  ;  Homestead  cases,  31 
Tex.  678. 

a  Homestead  cases,  31  Tex.  678;  Williams  v  Hale,  33  Tex.  215;  Ragland  v. 
Rogers,  34  Tex.  617. 

6  Campbell  v.  McManus,  32  Tex.  451 ;  McManus  v.  Campbell,  37  Tex.  267. 

^  Bassett  v.  Messner,  30  Tex.  636. 

8  Williams  v.  Wethered,  37  Tex.  132 ;  Smith  v.  Deschaurnes,  37  Tex.  429. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  363 

the  lot  on  which  the  owner's  house  stands,  if  it  be  used  by  the 
owner  in  connection  with  his  occupancy  of  such  dweUing- 
house.  But  the  office  of  a  single  man  is  not  exempted.^  So 
when  one  occupied  a  room  in  a  house  for  a  grocery,  and  an- 
other for  a  sleeping-room,  while  he  took  his  meals  at  another 
place,  it  was  held  not  to  be  making  such  house  his  residence 
or  place  where  he  usually  sleeps  and  eats,  nor  to  constitute  a 
homestead.2  But  a  homestead  may  be  gained  by  the  owner 
making  preparation  to  improve  the  land,  if  carried  so  far  as 
to  show  beyond  a  doubt  his  intention  to  complete  the  im- 
provement, and  a  residence  upon  it  as  a  home.^  By  the 
statute  of  1846,  if  one,  having  a  homestead,  die  leaving  a 
widow,  she  may,  as  head  of  the  family,  have  a  right  to  the 
land  of  such  homestead,  and  the  improvements  thereon,  not 
exceeding  five  hundred  dollars.  If  the  improvements  exceed 
that  value,  she  must,  in  order  to  retain  them,  pay  to  his  ad- 
ministrator the  excess  of  such  value.  Otherwise,  he  may 
sell  the  estate,  paying  her  the  value  of  the  homestead  and  the 
five  hundred  dollars  for  herself  and  her  children.* 

18.  The  statute  of  Vermont  exempts  a  dwelling-house,  out- 
buildings, and  lands  appurtenant,  occupied  as  a  homestead, 
to  the  value  of  five  hundred  dollars.^  This  may  be  either  an 
equitable  or  a  legal  estate,  incumbered  or  unincumbered,  if 
owned  by  the  one  claiming  the  exemption.^  Occupation  by 
the  debtor  is  an  essential  requisite.'^  It  would  not  be  sufficient 
that  it  was  occupied  by  a  tenant,  to  entitle  his  widow  to  claim 
homestead  in  the  premises.  Nor  could  she  claim  it  in  a  sepa- 
rate parcel  of  wood-land,  though  used  by  him  during  his  life 
to  supply  wood  for  his  dwelling-house,  nor  in  a  shop  and  land 
on  which  it  stands,  nor  the  pew  in  a  meeting-house  which  he 
had  occupied,^  nor  a  separate  parcel  not  adjoining  the  house- 

1  Hancock  v.  Morgan,  17  Texas,  582 ;  Pryor  v.  Stone,  19  Texas,  371 ;  Stanley 
V.  Greenwood,  24  Texas,  225. 

2  Philleo  V.  SmaUey,  23  Texas,  502.  »  Franklin  v.  Coffee,  18  Texas,  416. 
4  Wood  V.  Wheeler,  7  Texas,  25.  5  Comp.  Stat.  390,  391. 

6  Morgan  v.  Stevens,  41  Vt.  407  ;  Doane  v.  Doane,  46  Vt.  485. 
T  Howe  V.  Adams,  28  Vt.  544 ;  Jewett  v.  Brock,  32  Vt.  65  ;  Davis  v.  Andrews, 
80  Vt.  683 ;  McClary  v.  Bixby,  36  Vt.  257. 

8  True  V.  Morrill,  28  Vt.  672  j  Davis  v.  Andrews,  sup. 


364  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

lot.^  But  where  husband  and  wife's  estate  in  New  Hampshire 
was  sold  on  execution,  and  $500  as  homestead  reserved  and 
paid  over  to  them,  and  they  removed  to  Vermont,  it  was  held 
that  this  specific  sum,  if  retained  by  them,  was  exempt  from 
then"  debts  under  their  homestead  rights  in  Vermont.^ 

18  a.  The  exemption  in  Virginia  is  of  real  and  personal 
estate,  or  either,  not  exceeding  two  thousand  dollars,  to  be 
selected  by  the  householder.^ 

19.  In  Wisconsin,  the  statute  fixes  the  amount  of  property 
which  is  exempt  at  forty  acres,  if  used  for  agricultural  pur- 
poses, with  a  dwelling-house  thereon  and  its  appurtenances, 
or  if  in  a  city,  town,  or  village,  one  quarter  of  an  acre  with 
the  dwelling-house  and  appurtenances  thereon  occupied  by 
the  debtor,  irrespective,  in  either  case,  of  the  value  of  the 
premises.*  But  it  must  be  held  in  severalty,  in  order  to  be 
exempt  as  a  homestead.  A  mortgage,  therefore,  made  by  a 
husband  of  land  held  by  him  in  common  with  others,  was 
held  to  be  effectual  against  any  claim  by  the  wife  except 
for  dower.^  But  it  is  no  objection  to  the  exemption  taking 
effect,  that  the  house  for  which  it  is  claimed  stands  upon 
another's  land.^  Nor  need  the  claimant  have  a  perfect  title 
to  the  property.  It  must,  however,  be  occupied  by  him  in 
severalty,  and  be  susceptible  of  being  set  out  by  metes  and 
bounds."  An  unmarried  man  may  claim  it  if  he  have  a  fam- 
ily occupying  the  house  with  him.^  The  term  homestead, 
under  which  property  is  thus  exempted,  unjjlies  that  it  is  the 
land  where  is  situated  the  dwelling  of  the  owner  and  family, 
in  a  reasonably  compact  form,  and  does  not  intend  separate 
and  disconnected  lots.^  One  having  a  prairie  lot  with  a  house 
on  it,  and  a  parcel  of  wood-land  a  mile  distant  from  the  same, 
it  is  not  embraced  in  a  homestead  right,  although  he  get  his 
wood  from  such  lot  for  the  use  of  his  house.^'^    So  with  a  city 

1  Mills  V.  Estate  of  Grant,  36  Vt.  269.  2  Reyes  v.  Bines,  37  Vt.  260. 

3  Const,  art.  40,  1869 ;  Act  1870;  22  Am.  L.  Reg.  625. 
*  Stat.  c.  134,  §  23  ;  Phelps  v.  Rooney,  9  Wis.  70. 

6  West  V.  Ward,  26  Wis.  579.  6  Rgv.  Stat.  1858,  c.  124,  §  28. 

^  West  V.  Ward,  26  Wis.  580.  8  Myers  v.  Ford,  22  Wis.  141. 

9  Bunker  v.  Locke,  15  Wis.  638. 
w  Bunkei  ;,  Locke,  15  Wis.  638;  Herrick  v.  Graves,  16  Wis.  166. 


CH.  IX    §  2.]  ESTATES   BY   MARRIAGE.  365 

lot.^  If  it  be  a  city  lot,  the  exemption  only  extends  to  such 
parts  of  it  as  are  occupied  for  a  residence  or  home.  It  would 
not  cover  stores,  warehouses,  or  offices,  and  the  like,  which 
are  let  by  the  owner ;  though  if  the  shop  stand  upon  the  same 
lot  as  the  dwelling-house,  and  is  occupied  by  the  owner,  it 
may  be  included  in  the  exemption.^ 

20.  There  is  a  different  rule  applied  in  different  States  in 
respect  to  the  nature  and  extent  of  property  or  ownership 
requisite  on  the  part  of  the  one  claiming  exemption  in  the 
premises  in  respect  to  which  it  is  sought  to  be  applied.  In 
Iowa  and  Mississippi  it  may  be  claimed  in  an  estate  for  years.^ 
In  Illinois,  in  a  life-estate.*  In  Massachusetts,  Michigan,  New 
Hampshire,  Ohio,  and  Wisconsin,  a  homestead  maybe  claimed 
in  a  dwelling-house  belonging  to  the  debtor,  which  stands 
upon  the  land  of  another  by  virtue  of  a  lease  to  the  owner  of 
the  house.  And  in  Massachusetts  the  right  extends  generally 
to  premises  whether  owned  by  the  debtor,  or  rightfully  j)os- 
sessed  by  him  under  a  lease  or  otherwise.^  In  Michigan, 
Texas,  and  Wisconsin,  it  seems  to  be  sufficient  if  the  debtor 
has  a  title  to  the  premises,  or  being  in  possession  has  a  con- 
tract of  purchase  from  the  owner,  or  a  patent  from  a  State, 
with  a  right  to  demand  a  title  to  the  same.^  But  in  Texas, 
it  does  not  attach  to  the  estate  of  a  trustee,  although  the  trust 
be  a  resulting  one.'^  And  when  an  unmarried  man,  in  embar- 
rassed circumstances,  incurred  debts  by  erecting  a  dwelling- 
house  upon  land  belonging  to  him,  knowing  he  was  insolvent, 
and  then  married  a  wife  who  was  cognizant  of  the  facts,  it 
was  held  that,  under  the  homestead  right,  it  was  exempt  from 
a  creditor's  levy.^  A  different  rule  prevails  in  different 
States,  upon  the  homestead  being  allowed  in  lands  held  in 
severalty  or  in  common.     Thus  in  California,  Indiana,  and 

1  Herrick  v.  Graves,  16  Wis.  166.  2  Casselman  v.  Packard,  16  Wis.  116. 

3  Pelan  v.  DeBevard,  13  Iowa,  53 ;  Johnson  v.  Richardson,  33  Miss.  462. 

*  Deere  v.  Chapman,  25  111.  610. 

*  Thurston  v.  Haddocks,  6  Allen,  428 ;  Mich.  Stat.  c.  132 ;  N.  H.  Com.  Stat. 
c.  196;  Ohio,  Rev.  Stat.  1145;  Wis.  Stat.  c.  134,  §  23;  Norris  v.  Moulton,  84 
N.  H.  392 ;  Mass.  Gen.  Stat.  c.  104. 

6  McKee  v.  Wilcox,  11  Mich.  358;  Farmer  v.  Simpson,  6  Tex.  310;  McCabe 
V.  Mazzuchelli,  13  Wis.  478. 

7  Shepherd  v.  White,  11  Tex.  354. 

8  North  V.  Sheam,  15  Tex.  174. 


366  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

Massachusetts,  it  is  not  allowed  in  lands  held  in  common  by 
the  debtor  and  other  persons,^  even  though  held  thus  by  hus- 
band, wife,  and  child.^  Whereas  in  Iowa  it  is  no  objection 
that  the  estate  is  held  in  common  with  others.^  So  in  Ver- 
mont,^ if  held  in  common  by  husband  and  wife,  the  wife's 
homestead  after  his  death  is  to  be  set  out  wholly  from  the 
husband's  share  of  the  land.^ 


DIVISION  III. 

HOW  WHAT  IS  EXEMPT  IS  ASCERTAINED  AND  DECLAKED. 

1.    Different  modes  of  determining  what  is  exempt. 
1  a,  1  6.  How  determined  in  Alabama  and  Arkansas. 
2,  2  a.  How  what  is  exempt  is  determined  in  California  and  Florida. 

3.  How  determined  in  Georgia. 

4.  How  determined  in  Illinois. 

5.  How  determined  in  Indiana. 

6,  6  a,  6  b.  How  determined  in  Iowa,  Kansas,  and  Kentucky. 
7,  7  a.  How  determined  in  Maine  and  Maryland. 

8.  How  determined  in  Massachusetts. 

9.  How  determined  in  Michigan. 

10,  10  a,  10  b.  How  determined  in  Minnesota,  Mississippi,  Missouri,  and  Ne- 

braska. 

11,  11  a,  11  b.  How  determined  in  New  Hampshire,  New  Jersey,  and  Nevada. 

12,  12  a.  How  determined  in  New  York  and  North  Carolina. 

13.  How  determined  in  Ohio. 

14.  How  determined  in  Pennsylvania. 

15.  How  determined  in  South  Carolina. 

16.  How  determined  in  Vermont. 

17.  How  determined  in  Wisconsin. 

1.  While  in  some  of  the  States  a  homestead  exemption  at- 
taches as  an  incident  to  the  ownership  of  an  estate,  without 
any  previous  act  of  appropriation  on  the  part  of  the  owner,  in 
others  it  requires  some  act  of  notoriety  in  selecting  and  mak- 
ing known  the  premises  which  are  to  be  exempted  from  be- 
ing levied  upon  by  creditors  by  process  of  law. 

1  Wolf  V.  Fleischacker,  6  Cal.  244 ;  Holden  v.  Pinney,  6  Cal.  236 ;  Giblm  w. 
Jordan,  6  Cal.  417;  2  Ind.  Stat.  367 ;  Thurston  v.  Maddocks,  6  AUen,  428. 

2  Giblin  v.  Jordan,  sup. ;  Smith  v.  Smith,  12  Cal.  216. 
8  Thorn  v.  Thorn,  14  Iowa,  49. 

*  McClary  v.  Bixby,  36  Vt.  254,  257.  ^  McClary  v.  Bixby,  stip. 


CH.  IX.  §  2.]  ESTATES   BY    MARRIAGE.  367 

1  a.  In  Alabama,  it  is  claimed  and  selected  by  the  owner, 
and  if  creditors  are  dissatisfied  as  to  the  estimated  value  of 
the  premises,  they  are  valued  by  three  freeholders  and  set  out 
by  metes  and  bounds.^  The  law  does  not  require  the  selec- 
tion to  be  made  in  one  body  ;  the  house  may  be  on  one  lot,  and 
the  land  exempted  may  be  in  another.^  And  in  making  their 
estimate  of  value,  the  appraisers  are  not  restricted  to  a  frac- 
tion of  the  sum  prescribed  by  the  statute.^ 

1  h.  In  Arkansas,  the  debtor  selects  his  own  homestead, 
and  if  he  resides  on  two  lots  upon  which  a  levy  is  made,  he 
may  elect  and  designate  which  is  to  be  exempted,  up  to  the 
day  of  sale.* 

2.  In  California,  the  debtor  selects  such  part  of  his  estate 
as  he  wishes  to  hold  exempt,  and  makes  a  declaration  and 
record  of  this,  though  it  had  previously  been  held  otherwise. 
But  now,  as  formerly,  the  question  of  the  value  of  the  selected 
premises  may  be  determined  by  appraisers,  if  the  creditor 
believes  the  selected  homestead  exceeds  in  value  the  sum  pre- 
scribed by  statute.^  And  the  commissioners  appointed  to  ap- 
praise the  value  may  set  apart  the  homestead  for  the  debtor.^ 
If  it  is  not  capable  of  being  set  out  by  itself,  the  whole  is  to 
be  sold  and  the  debtor  is  to  receive  his  share.'^  Upon  the 
death  of  the  husband,  the  judge  of  probate  may  set  out  the 
homestead  to  his  widow  and  her  children.^  If  it  has  been  set 
off  in  the  lifetime  of  the  owner  by  the  husband  and  wife,  or 
either  of  them,  it  is  exempt  from  administration.  If  it  is  not 
set  out  in  the  husband's  lifetime,  the  judge  of  probate  may 
set  out  to  the  widow  not  more  than  twenty  acres  of  land,  with 
a  dwelling-house  thereon,  if  not  in  an  incorporated  town  or 
city,  and  not  exceeding  one  lot  in  any  such  town  or  city,  with 
a  dwelling-house,  to  be  selected  by  the  widow,  and  if  not 
done  by  her,  .by  the  judge,  of  the  value  of  $5,000.^     The 

1  Stat.  1867.  2  Melton  v.  Andrews,  45  Ala.  454. 

3  Pomeroy  v.  Buntings,  42  Ala.  254.  ♦  Stat.  1868,  c.  68. 

5  Cohen  v.  Davis,  20  Cal.  187  ;  Wood,  Dig.  483,  484  ;  Cook  v.  McChristian, 
4  Cal.  24 ;  Taylor  v.  Hargous,  4  Cal.  272 ;  Holden  v.  Finney,  6  Cal.  236. 

6  Stat.  1868. 

7  Gregg  V.  Bostwick,  33  Cal.  222 ;  Mann  v.  Rogers,  35  Cal.  319. 

8  Wood,  Dig.  sii-p. ;  Estate  of  Tompkins,  12  Cal.  125 ;  Matter  of  Orr,  29  Cal. 
103 ;  Stat.  1868,  p.  116. 

9  Stat.  1868 ;  Rich  v.  Tubbs,  41  Cal.  34;  Shadt  v.  Heppe,  45  Cal.  437. 


368  LAW   OF   REAL    PROPERTY.  [BOOK    I. 

homestead  may  be  selected  by  the  husband  or  wife,  or  both, 
by  a  declaration  in  writing,  to  be  signed,  acknowledged,  and 
recorded,  and  from  that  time  the  husband  and  wife  hold  as 
joint-tenants.  Nor  does  the  right  of  joint-tenancy  attach  till 
such  declaration  is  filed  for  record. ^  By  the  statute  of  1862, 
to  give  an  estate  a  character  of  homestead  so  as  to  exempt  it 
from  a  forced  sale,  there  must  be  the  requisite  declaration 
filed,  so  that  where  a  husband  married  and  had  a  child  and 
died  without  making  such  a  declaration,  it  was  held  to  be  a 
waiver  of  homestead  so  far  as  the  husband's  creditors  were 
concerned.^  A  homestead  formerly  could  not  be  claimed  in 
property  held  in  common  as  joint-tenancy.^  But  by  statute 
of  1868,  it  may  be  set  out  in  lands  held  in  joint-tenancy  or 
tenancy  in  common.^  A  failure  to  record  the  declaration  of 
homestead  within  the  time  prescribed  by  law,  is  a  waiver  of 
the  right  of  homestead,  so  that  if  a  conveyance  has  been 
made  in  the  mean  time,  it  takes  effect.^ 

2  a.  In  Florida,  if  a  levy  is  made  upon  an  estate  claimed 
as  a  homestead  on  the  ground  that  it  exceeds  the  value  of  the 
exemption,  assessors  are  appointed  to  set  off  such  part  of  it  as 
is  of  that  value,  having  a  dwelling-house  thereon.^ 

3.  In  Georgia,  if  the  debtor's  estate  do  not  exceed  the  limit 
of  a  homestead  right,  under  the  statute,  he  has  no  occasion  to 
have  it  set  out  as  such  in  order  to  secure  it."  But  if  it  is  of 
greater  value  than  the  amount  of  such  exemption,  he  must 
have  such  part,  including  his  dwelling-house,  set  out  as  he 
intends  to  hold  as  a  homestead,  if  he  would  prevent  or  defeat 
a  levy  upon  the  same  by  a  creditor.^  But  if  the  estate  be  a 
town  lot,  not  susceptible  of  division,  but  of  greater  value  than 
is  exempted  by  law,  the  creditor  may  cause  the  same  to  be 
sold,  and,  after  paying  the  debtor  the  amount  of  such  exemp- 
tion, may  apply  the  balance  upon  his  debt.^     By  the  code  of 

1  McQuade  v.  Whaley,  31  Cal.  531,  538. 

2  Matter  of  Reed's  Estate,  23  Cal.  410 ;  Noble  v.  Hook,  24  Cal.  639. 

3  Bishop  V.  Hubbard,  23  Cal.  517  ;  Elias  v.  Verdugo,  27  Cal.  425. 
«  Seaton  v.  Son,  32  Cal.  481. 

»  McQuade  v.  Whaley,  31  Cal.  526.  «  Thomp.  Digest,  1847,  357. 

f  Pinkerton  v.  Tumlin,  22  Ga.  165 ;  Dearing  v.  Thomas,  25  Ga.  224. 
«  Cobb's  Dig.  389,  390 ;  Davenport  v.  Alston,  14  Ga.  271. 
•  Deariog  v.  Thomas,  aup. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  369 

1873,  the  person  claiming  a  homestead  applies  to  the  ordinary 
to  lay  it  off  and  make  a  plat  of  it,  and,  if  objection  is  made  as 
to  its  estimated  value,  he  may  set  it  out  by  appraisers.  So  if  set 
out  in  a  town  lot  of  a  greater  value  than  $2,000,  the  ordinary 
may  cause  it  to  be  sold,  and  that  sum  to  be  invested  in  a  new 
homestead  for  the  benefit  of  the  owner's  family  ;  or  the  owner 
may  pay  whatever  it  exceeds  $2,000,  and  hold  such  excess 
exempt  from  debts,  as  if  the  same  had  been  settled  on  his 
wife  and  minor  children,  or  either  of  them.  If  the  claimant 
owns  scattering  lots,  or  money,  the  ordinary  may  direct  them 
to  be  sold,  and  a  new  homestead  in  a  single  lot  to  be  purchased 
with  the  proceeds  or  money.  Any  person  who  is  head  of  a 
family,  who  lives  as  a  housekeeper,  may  have  a  homestead 
set  out  to  him  or  her  out  of  his  or  her  land.  And  if  a  husband 
refuses  to  apply  for  it,  the  wife  or  next  friend  may  do  it.  So 
if  a  widow  apply  for  homestead  out  of  land,  and  the  same 
cannot  be  divided,  it  may  be  sold,  and  |2,000  out  of  it  in- 
vested in  a  new  homestead. ^  Where  a  homestead  is  set  out, 
it  carries  the  crops  then  growing  upon  it.^  If  application  for 
homestead  is  not  made  until  a  levy  is  made  upon  the  land,  it 
may  then  be  made  to  the  ordinary,  and  it  will  have  the  effect, 
if  notice  is  given,  to  have  the  land,  when  sold  under  the  levy, 
pass  subject  to  the  right  of  homestead.^ 

4.  In  Illinois,  the  exemption  reserves  one  lot  and  the  build- 
ings thereon  occupied  as  a  residence.  But  if  a  creditor  be- 
lieve the  premises  to  exceed  one  thousand  dollars  in  value,  he 
may  have  the  same  appraised  by  a  jury  of  six  men,  and,  if  the 
same  be  susceptible  of  division,  may  have  a  homestead  of  that 
value  set  out,  and  the  residue  sold.  If  one  creditor  causes  this 
to  be  done,  and  another  afterwards  levies  upon  the  homestead, 
on  the  ground  that  it  has  become  of  greater  value  than  the 
homestead  exemption,  the  same  process  may  be  gone  through 
with  of  a  new  appraisal  and  sale  of  the  excess,  if  any.*  If  not 
so  divisible,  the  jury  adjudge  how  much  it  exceeds  the  pre- 
scribed value,  and  the  debtor  ma}""  retain  the  whole  upon  pay- 
ing such  excess ;  otherwise  the  creditor  may  cause  the  entire 

1  Code  1873,  §  5135.  a  Cox  v.  Cook,  46  Ga.  301 . 

8  Blivins  v.  Johnson,  40  Ga.  297  ;  Harris  v.  Colquit,  44  Ga.  663. 
«  Stubblefield  i;.  Graves,  50  HI.  103. 
VOL.  I.  24 


370  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

estate  to  be  sold,  paying  to  the  debtor  the  sum  of  one  thousand 
dolhxi's,  which  he  may  hold,  free  from  levy,  for  the  term  of 
one  year.i  But  the  law  does  not  require  the  husband  and 
wife  to  do  anything  in  order  to  create  this  right  of  homestead 
exemption.  The  statute  confers  it  upon  them.^  It  is  a  right 
cast  upon  the  wife  for  her  benefit  and  that  of  her  children.^ 
As  a  widow  is  entitled  to  dower  independent  of  her  home- 
stead, the  latter  must  contribute  pro  rata  with  the  rest  of 
the  estate  in  setting  out  this  dower.*  And  what  shall  consti- 
tute "  a  lot,"  is  a  matter  for  a  jury  to  determine.  It  may 
include  more  than  an  original  lot,  if  embraced  in  one  inclosure 
and  occupied  as  one  lot.^ 

5.  In  Indiana,  the  debtor  has  to  select  the  property  which 
he  proposes  to  hold  exempt.^  And  before  he  can  claim  the 
benefit  of  homestead  in  any  part  of  his  estate,  he  must  make 
out  and  deliver  to  the  sheriff  an  entire  list  of  his  property, 
though,  in  his  absence,  this  may  be  done  by  his  wife  who  is 
authorized  to  set  up  the  claim.'^  If  any  question  arises  as  to 
the  value  of  that  claimed  to  be  exempted,  the  debtor  is  to 
make  ,out  and  deliver  to  the  officer  a  description  of  the  samt, 
by  metes  and  bounds,  and  the  same  is  to  be  submitted  to  ap- 
praisers. If  a  debtor's  property  is  not  divisible,  so  that  his 
homestead  can  be  set  out,  he  may  hold  the  entire  estate,  if  he 
will  pay  the  difference  between  the  prescribed  exemption  and 
the  value  of  the  estate.  If  he  do  not  do  this,  the  officer  may 
sell  the  whole,  and  pay  over  to  the  debtor  the  amount  of  the 
exempted  value. ^ 

6.  In  Iowa,  the  debtor  may  select  his  homestead  and  have 
it  recorded  in  the  registry  of  deeds,  or,  if  he  fail  to  do  so,  his 
wife  may.  But  if  neither  do  it,  the  officer  having  an  execu- 
tion, and  wishing  to  levy  upon  the  debtor's  land,  must  cause 
it  to  be  done.^  And  if  a  debtor  occupy  a  building  as  a  dwell- 
ing-house, the  exemption  will  be  understood  to  extend  to  the 

1  Stat.  lU.  p.  650;  Hume  v.  Gossitt,  43  111.  299. 

2  Pardee  v.  Lindley,  31  111.  187  ;  Hubbell  v.  Canady,  58  lU.  427. 

8  Hubbell  V.  Canady,  58  111.  427.  *  Knapp  v.  Goss,  63  lU.  492. 

6  Thornton  v.  Boyden,  31  111.  211 ;  Pardee  v.  Lindley,  sup. 

*  Austin  V.  Swank,  9  Ind.  112. 

T  Stat.  1859;  State  v.  Melogue,  9  Ind.  196. 

8  2  Ind.  Stat.  367  ;  Const,  art.  1,  §  42  ;  Stat.  1862,  p.  368. 

9  Code  1873,  Tit.  18,  c.  2,  §  3072. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  371 

whole  of  such  building.^  The  right  vests  at  once  upon  the 
marriage,  in  respect  to  the  husband's  lands,  and,  so  far  as  the 
wife  is  concerned,  is  of  a  higher  nature  than  that  of  dower.^ 
6  a.  In  Kansas,  if  a  homestead  has  not  been  actually  set 
apart,  and  is  levied  upon  by  a  creditor,  the  wife,  agent,  or  at- 
torney, as  well  as  the  householder  himself,  may  notify  the 
officer  what  is  claimed  as  homestead,  and  the  remainder  only 
of  the  debtor's  estate  is  liable  to  be  levied  on.^ 

6  5.  In  Kentucky,  if  a  debtor  claims  a  homestead  right  in 
land  levied  upon,  the  officer  has  to  cause  it  to  be  set  out  as 
claimed,  and  if  it  is  of  greater  value  than  $1,000,  and  is  not 
divisible,  he  may  sell  the  same,  and  pay  the  debtor  that 
amount  in  money.* 

7.  In  Maine,  the  debtor  has  to  file  a  certificate  under  his 
hand,  in  the  registry  of  deeds,  containing  a  description  of  the 
premises  and  that  he  intends  to  make  them  a  homestead,  and 
they  must  be  in  his  actual  possession.  If,  however,  a  creditor 
contests  the  value  of  the  premises  so  selected,  appraisers  are 
to  be  appointed  to  set  out  premises  of  the  requisite  value,  the 
selection  of  which  lies  with  the  debtor  if  he  will  exercise  it, 
otherwise  with  the  officer  who  may  levy  upon  the  residue  of 
his  estate.^  And  if,  after  once  making  a  selection  of  his 
homestead,  the  debtor  sell  the  estate  and  again  repurchase  it, 
he  must,  in  order  to  hold  it  exempt,  file  and  record  a  new 
certificate.^ 

7  a.  In  Maryland,  the  debtor  may  select  one  hundred  dol- 
lars of  real  or  personal  estate,  to  be  ascertained  by  appraisers  ; 
and  if  his  property  is  not  susceptible  of  division,  it  may  be 
levied  upon  and  sold,  and  the  one  hundred  dollars  paid  to  the 
debtor.''' 

8.  In   Massachusetts,   either   the   deed  under  which   the' 
debtor  claims  title  must  contain  a  declaration  that  the  prem- 
ises are  to  be  held  as  a  homestead,  or  such  a  declaration  must 
be  made  in  writing,  signed,  sealed,  and  recorded  in  the  regis- 
try of  deeds.     From  the  nature  of  the  case,  the  homestead  is 

1  Ehodes  v.  McCormick,  4  Iowa,  368 ;  Kurz  v.  Brusch,  13  Iowa,  371. 

2  Chase  v.  Abbott,  20  Iowa,  160. 

8  Gen.  Stat.  1868,  c.  38,  §  1.  *  Gen.  Stat.  1873,  p.  433. 

5  Rev.  Stat.  c.  81,  §  37-41.  6  Lawton  v.  Bruce,  39  Me.  484 

'  Stat.  1861. 


372  LAW  OF  REAL  PROPERTY.  [bOOK  L 

for  the  personal  use  of  the  debtor  and  his  family,  and  must 
be  several  and  exclusive  as  far  as  it  goes.^  But  a  making  and 
recording  a  declaration  of  an  intention  to  hold  premises  as  a 
homestead,  before  the  party  has  a  house  upon  the  same  fit  for 
occupation,  and  occupied  by  him,  is  not  effective  to  create  or 
establish  a  homestead  right  in  the  same.  There  must  be  an 
occupation,  to  perfect  the  right.^  And  if  a  part  of  the  dwelling- 
house  upon  the  premises  is  occupied  by  the  owner,  it  is  no 
objection  to  extending  a  right  of  homestead  over  the  whole, 
that  other  parts  of  it  are  occupied  by  tenants.^  If  creditors 
contest  the  value  of  what  is  claimed  to  be  exempted,  ap- 
praisers estimate  the  same,  and  may  set  off  estate  of  the  req- 
uisite value,  including  the  dwelling-house,  in  whole  or  in  part, 
and  the  residue  is  subject  to  levy,  or,  if  the  debtor  is  insol- 
vent, to  be  sold  by  his  assignees.*  If  the  husband  die  while 
in  possession  of  a  homestead,  his  widow  may  continue  to  oc- 
cupy the  same,  without  its  being  formally  assigned  by  the 
judge  of  probate,  provided  the  whole  estate  of  which  he  died 
seised  did  not  exceed  the  amount  exempted  by  law.  If  it  do, 
she  may  continue  to  occupy  such  part  as  may  be  of  that 
value,  untn  partition  of  the  estate  be  made.^  The  assign- 
ment to  a  widow  of  her  dower  does  not  defeat  her  claim  to 
homestead  in  addition  .  to  it,  if  so  much  estate  remains  to 
which  the  character  of  a  homestead  right  attaches.^  Nor  can 
the  judge  exercise  any  jurisdiction  in  the  matter  of  a  widow's 
claim  for  homestead,  if  her  right  thereto  is  denied  by  the 
heirs  or  devisees  of  the  husband.'^  She  must  in  such  case 
sue  a  writ  of  entry  to  recover  her  homestead.^  The  home- 
stead of  an  insolvent  debtor  may  be  set  off  to  him  under  the 
direction  of  the  insolvent  court.  But  in  order  to  the  judge 
having  jurisdiction,  application  for  this  purpose  must  be  made 
before  the  assignee  sells  the  estate,  and  then  the  claimant 
must  resort  to  a  process  of  partition.  If,  after  his  insolvenc}'-, 
a  debtor  continues  to  occupy  his  estate,  and  it  is  of  greater 

1  Bemis  v.  Driscoll,  101  Mass.  421. 

2  Lee  V.  Miller,  11  Allen,  37.  '  Mercier  v.  Chace,  11  Allen,  IM. 

*  Gen.  Stat.  c.  104.  8  Parks  v.  Reilly,  6  Allen,  77. 
8  Mercier  v.  Chace,  11  Allen,  196. 

1  Lazell  V.  Lazell,  8  Allen,  575 ;  Woodward  v.  Lincoln,  9  Allen,  239. 

•  Mercier  v.  Chace,  9  Allen,  242. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  373 

value  than  liis  homestead  right,  he  holds  the  latter  by  a  dis- 
tmct  title,  undivided  and  in  common  with  the  rest  of  the 
estate,  defeasible  by  his  alienation  of  it,  or  by  his  acquiring 
a  new  homestead.^ 

9.  In  Michigan,  no  form  of  declaring  or  making  known  an 
intention  to  claim  a  homestead  is  required,  provided  a  debtor 
lives  upon  and  occupies  an  estate  of  no  greater  value  than 
what  is  exempted  by  law.^  The  term  "  selection,"  as  used  in 
the  statute,  implies  only  the  separating  premises  of  the  requi- 
site value  from  those  of  a  greater  value,  and  defining  by  metes 
and  bounds  that  which  is  so  set  apart.  If,  therefore,  the 
debtor's  estate  be  of  greater  value  than  the  prescribed  exemp- 
tion, and  can  be  divided  so  as  to  set  apart  a  homestead  with  a 
dwelling-house,  which  will  not  exceed  the  statute  limit,  the 
debtor  may  select  it,  and  make  it  known  to  his  creditors.  But 
if  it  is  of  greater  value  than  that,  and  cannot  be  divided,  it 
may  be  sold,  and  the  value  of  the  homestead  paid  to  the  debtor. 
If,  therefore,  a  creditor  insists  that  its  value  exceeds  the  stat- 
ute hmits,  the  question,  it  seems,  is  to  be  determined  by  a  pro- 
cess out  of  the  court  of  equity,  and  if  found  to  be  of  greater 
value  than  the  statute  exempts,  the  question  is  then  to  be 
determined,  whether  it  can  be  divided  so  as  to  have  a  proper 
homestead  set  off.  But  the  selection  need  not  be  made  prior 
to  the  lev}^,  nor  need  it  be  done  in  writing.  It  is  enough  that 
when  the  levy  is  made,  the  officer  is  notified  of  the  claim.^  If 
the  creditor  is  dissatisfied  with  the  amount  claimed  by  the 
debtor  as  being  exempt,  he  may  have  the  homestead  surveyed 
and  appraised  and  set  off,  and  may  have  the  remainder  sold. 
And  if  it  cannot  be  divided  and  set  off  from  the  rest  of  the 
estate,  the  debtor  may  pay  the  excess  above  11,500,  and  pre- 
vent the  sale.  If  he  do  not,  the  officer  may  sell  the  whole  and 
pay  the  debtor  that  sum,  who  may  hold  the  same  exempt  from 
attachment  and  levy  for  one  year,* 

10.  In  Minnesota  and  Mississippi,  it  only  seems  necessary 
that  premises  of  the  prescribed  size  and  value  should  be 
actually  occupied  by  the  debtor  as  a  residence  or  home,  in 

1  Silloway  v.  Brown,  12  Allen,  35.  2  Thomas  v.  Dodge,  8  Mich.  55. 

8  Comp.  Laws,  1871,  c.  193;  Beechor  v.  BalJy,  7  Mich.  488;  Dye  v.  Mann, 
10  Mich.  298. 

*  Comp.  Laws,  1871,  c.  193. 


874  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

order  to  secure  their  exemption  from  levy  by  a  creditor.^  If, 
in  the  former  State,  a  levy  is  made  before  the  homestead  has 
been  selected,  the  householder  is  to  notify  the  officer  making 
it  what  he  regards  as  his  homestead,  with  a  description  of  it. 
And  if  the  creditor  is  dissatisfied,  the  officer  may  have  the 
same  set  out  by  appraisal.^ 

10  a.  In  Missouri,  if  a  levy  is  made  upon  the  premises  of  a 
debtor,  he  is  to  designate  the  part  which  he  wishes  to  hold  as 
homestead.  And  the  officer  making  it  is  to  appraise  the  same, 
and  may  proceed  to  sell  the  excess.  If  it  is  not  separable 
from  the  rest  of  the  estate,  the  whole  may  be  sold,  and  the 
value  of  the  homestead  paid  to  the  debtor,  and  the  surplus 
applied  to  the  benefit  of  creditors.  If  not  set  out  in  the  life- 
time of  the  debtor,  the  judge  of  probate  sets  out  a  homestead 
to  the  widow  by  commissioners.  If,  in  case  of  a  levy  upon 
the  estate  and  it  is  not  divisible,  and  the  debtor  will  pay  the 
excess  over  the  value  of  the  homestead,  he  may  prevent  the 
sale.  If  sold,  the  value  of  the  homestead  is  invested,  by  order 
of  the  court,  in  a  new  homestead.^  In  setting  out  homestead 
to  a  widow  after  her  husband's  death,  commissioners  first  set 
that  out,  and  then  the  widow's  dower,  unless  the  home- 
stead takes  one-tliird  of  the  estate.  If  it  does,  she  takes  no 
dower.^ 

10  b.  In  Nebraska,  if  the  homestead  is  not  selected  till  the 
levy  is  made,  the  debtor  notifies  the  officer  what  he  regards 
as  his  homestead,  with  a  description  of  it.  If  the  creditor  is 
dissatisfied  with  what  is  claimed,  the  officer  is  to  have  the 
same  appraised,  and  the  same  set  off  as  such  homestead, 
including  the  dwelling-house,  and  the  balance  is  liable  to  be 
sold.^ 

11.  In  New  Hampshire,  no  previous  act  of  setting  apart  of 
the  premises  seems  to  be  necessary ;  the  right  attaches  to 
whatever  a  debtor  owns  and  actually  occupies,  not  exceeding 
the  prescribed  amount  exempted  by  law.^     The  selection  is 

1  Tillotson  V.  Millard,  7  Minn.  513 ;  Morrison  v.  McDaniel,  30  Miss.  287. 

2  Stat,  at  Large,  1873,  c.  32,  Tit.  5. 

8  Gen.  Stat.  1865,  c.  Ill ;  In  re  Beckerkord,  19  Am.  L.  Reg.  58. 
4  Gen.  Stat.  c.  111.  5  Gen.  Stat.  1873,  p.  616. 

6  Norris  v.  Moulton,  34  N.  H.  892;  Hoitt  v.  Webb,  36  N.  H.  158;  Horn  v. 
Tufts,  39  N.  H.  484. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  375 

made,  when  an  officer  undertakes  to  levy  nj)on  the  debtor's 
estate,  of  such  part  as  the  debtor  elects,  to  be  appraised  by 
assessors  and  by  them  set  off  by  metes  and  bounds,  leavmg 
the  surplus  to  be  levied  upon.  Upon  a  levy  being  made,  the 
husband  or  wife,  or  her  next  friend,  may  make  ajDplication  in 
writing  to  the  officer  to  have  a  homestead  set  off,  and  he  is  to 
have  it  done  by  metes  and  bounds,  by  appraisers.^  If  the 
land  claimed  as  homestead  exceed  $500  in  value,  the  sheriff, 
in  setting  off  the  excess,  must  first  set  out  the  homestead,  and 
then  proceed  to  levy  upon  the  surplus.^  But  if  it  is  levied  on 
before  the  homestead  is  set  out,  the  debtor  holds  his  homestead 
as  tenant  in  common  with  the  rest  of  the  estate^  and  may 
have  partition  of  the  same.^  If  the  appraisers  adjudge  that 
the  homestead  cannot  be  set  off  from  the  other  parts  of  the 
estate  without  injury  to  the  same,  they  appraise  the  whole  ; 
and  if  the  debtor  will  not  ipa,y  the  excess  over  the  amount 
exempted,  the  sheriff  may  sell  the  whole,  paying  the  amount 
of  the  exemption,  for  the  benefit  of  the  debtor  and  his  wife.* 
The  amount  of  this  exemption  the  office-r  deposits  in  a  sav- 
ings-bank to  the  credit  of  the  debtor  and  his  wife  or  children, 
to  be  drawn  out  only  upon  the  joint  order  of  husband  and 
wife  if  living,  otherwise  of  the  guardian  of  their  children. 
After  the  debtor's  death,  the  judge  of  probate  may  set  off  a 
homestead  to  the  widow  in  the  same  manner  as  dower.  But 
the  right  of  homestead  is  not  lost  by  the  neglect  of  the  debtor 
to  claim  it  of  the  officer  when  levying  upon  the  same.^  But 
if  the  debtor  or  wife  do  not,  when  the  levy  is  made,  apply  to 
have  a  homestead  set  off,  the  officer  may  set  off  the  land 
upon  his  execution,  subject  to  the  homestead  right,  and  the 
debtor  and  creditor  will  tliereupon  hold  the  estate  in  common 
until  the  homestead  is  set  out  upon  partition  prayed  for.^  If 
a  debtor  convey  his  estate  without  his  wife  joining  in  the  con- 
veyance, and  have  no  homestead,  his  wife  may  apply  and 
have  a  homestead  set  out  in  the  land  thus  conveyed  even  in 

1  Gen.  Stat.  1867,  c.  124 ;  Stat.  1868,  §§  33-37. 

2  Tucker  v.  Kenniston,  57  N.  H.  267. 
8  Barney  v.  Leeds,  51  N.  H.  253. 

4  Rev.  Stat.  c.  196 ;  Norris  v.  Moulton,  34  N.  H.  39 ;  Fogg  v.  Fogg,  40  N.  H. 
289.  5  Gen.  Stat.  1867,  c.  124 ;  Stat.  1868,  §§  33-37. 

«  Barney  v.  Leeds,  51  N.  H.  253. 


376  LAW    OF    REAL    PROPERTY.  [liOOK    1. 

the  lifetime  of  her  husband.^  If  the  wife  survive  the  hus- 
band, her  homestead  is  set  out  by  the  judge  of  probate,  pro- 
vided he  died  seised  of  the  premises.^  But  if  the  husband 
convej'  the  premises  in  his  lifetime,  the  wife,  after  his  death, 
may  have  partition  against  such  purchaser,  and  have  her 
share  set  out  to  her.^ 

11  a.  In  New  Jersey,  the  deed  by  which  the  debtor  acquires 
his  estate  may  contain  a  declaration  that  it  is  designed  as  a 
homestead ;  but  if  it  is  not  thus  declared,  a  notice  to  that  effect 
is  to  be  executed,  acknowledged,  and  recorded  by  the  owner, 
containing  a  descrijDtion  of  what  is  claimed,  and  this  is  to  be 
published  in  a  newspaper.  If  it  is  worth  more  than  $1,000, 
the  officer,  in  making  a  levy  upon  it,  if  it  is  divisible,  has  it 
appraised  and  that  value  set  off.  But  if  it  is  not  divisible, 
and  the  debtor  will  pay  the  excess  above  the  value  of  the 
homestead,  he  may  do  so  and  prevent  a  sale.  If  he  do  not  do 
this,  the  estate  is  sold  and  the  $1,000  paid  to  the  debtor,  who 
holds  it  exempt  from  attachment  for  a  year.* 

11  h.  In  Nevada,  a  homestead  is  to  be  selected  by  husband 
and  wife,  or  either  of  them,  or  other  head  of  a  family.  The 
claim  is  to  be  made  in  writing  by  one  residing  upon  the  prem- 
ises, stating  the  claimant's  interest  in  the  estate,  and  his  wish 
to  make  it  a  homestead,  which  wi'iting  is  to  be  signed,  acknowl- 
edged, and  recorded.  If  then  a  creditor  makes  oath  that  the 
homestead  is  of  greater  value  than  $5,000,  the  judge  appoints 
appraisers  to  value  it,  and  decide  whether  it  can  be  divided. 
If  it  can  be,  only  the  excess  can  be  levied  on.  If  it  cannot 
be,  the  whole  is  sold  and  $5,000  paid  to  the  debtor,  subject  to 
the  order  of  the  court  that  it  be  deposited  in  court,  and  pay- 
able only  to  the  order  of  the  husband  and  wife  ;  and  the  same 
is  held  free  from  legal  process  or  conveyance  by  the  husband, 
as  the  original  homestead  was  held.  And  upon  the  death  of 
the  husband  or  wife,  the  homestead  is  set  apart  for  the  sur- 
vivor and  his  or  her  legitimate  children.^ 

1  Tidd  V.  Quinn,  52  N.  H.  34L 

2  Norris  v.  Moulton,  sup. ;  Horn  v.  Tufts,  sup. 

8  Atkinson  v.  Atkinson,  37  N.  H.  434;  Gunnison  v.  Twitchell,  38  N.  H.  67; 
Horn  V.  Tufts,  sup. 

*  Digest,  1868.  «  Comp.  Laws,  1873,  §  18G. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  377 

12.  In  New  York,  either  the  deed  of  the  owner  must  show 
the  intention  that  it  should  be  to  him  a  homestead,  or  he  must 
by  a  proper  instrument,  executed  and  acknowledged,  give 
notice  that  the  premises  are  so  held ;  which  instrument  must 
contain  a  full  description  of  the  premises,  and  be  recorded  in 
the  clerk's  office.  If  the  sheriff,  upon  making  a  levy,  con- 
tests the  value  of  the  premises  claimed  to  be  exempt,  he  may 
have  the  same  appraised  by  six  jurors,  and  if  it  can  be  divided 
and  so  set  off  as  to  give  the  debtor  that  value,  embracing  a 
dwelling-house,  the  surplus  may  be  levied  on.  If  it  is  not 
susceptible  of  such  division,  and  the  debtor  will  pay  the 
excess  of  the  value  of  the  estate  over  the  amount  exempted, 
he  may  relieve  the  same  from  levy.  Otherwise  the  sheriff 
may  sell  the  whole,  if  it  will  bring  more  than  the  amount 
exempted,  and  by  paying  that  to  the  debtor,  apply  the  excess 
upon  the  execution. ^ 

12  a.  In  North  Carolina,  a  homestead  is  selected  by  the 
owner,  and,  if  he  neglects  to  do  this,  appraisers  set  it  off  for 
him.  In  either  case,  they  lay  off  by  metes  and  bounds  prem- 
ises for  that  purpose  of  the  value  of  81,000.  Any  resident 
may  apply  to  have  this  done,  and,  if  he  do  not  do  it,  and  die, 
his  widow,  if  he  have  one,  or  his  child  or  children  under 
twenty-one  years  of  age,  may  have  it  set  off  to  her  or  them. 
And  several  contiguous  parcels  may  be  set  off  for  this  pur- 
pose, if  they  do  not  exceed  in  value  |1,000.  It  is  essential  to 
its  being  exempted  as  a  homestead  that  it  should  be  occupied 
as  such.2  A  homestead  may  consist  of  two  or  more  parcels 
separate  from  each  other,  if,  collectively,  they  do  not  exceed 
•$1,000.^  Nor,  before  1862,  was  it  restricted  to  the  lot  on  which 
the  debtor  resides,  nor  to  contiguous  tracts.*  It  may  be 
claimed  in  an  equity  of  redemption  subject  to  the  mortgage.^ 

13.  In  Ohio,  the  sheriff  having  an  execution  against  the 
debtor,  if  applied  to  by  the  debtor  or  his  wife,  causes  the 
homestead  to  be  set  off  by  appraisers,  by  metes  and  bounds. 
And  the  same  is  done  after  his  death  in  favor  of  his  wife,  if  it 
is  not  done  in  the  lifetime  of  the  husband.^     The  right  ex- 

1  4  Stat,  at  Large,  Pt.  3,  c.  260,  p.  632.  2  Rev.  Stat.  1873. 

3  Martin  v.  Hughes,  67  N.  C.  293 ;  Mayho  v.  Colton,  69  N.  C.  289. 

4  Maylio  V.  Colton,  69  N.  C.  289.  ^  Chatham  v.  Souls,  68  N.  C.  165. 
e  Rev.  Stat.  1145. 


378  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

tends  to  lessees  of  lands  and  owners  of  buildings  standing  on 
others'  lands.  If  the  estate  claimed  as  homestead  exceed  in 
value  $500,  and  is  not  divisible,  a  creditor  may  have  set  off 
to  him  all  the  proceeds  of  the  estate  exceeding  forty  dollars 
by  the  year,  until  his  debt  shall  have  thereby  been  satisfied.^ 

14.  In  Pennsylvania,  the  debtor  exercises  his  election  to 
claim  a  homestead,  when  the  officer  makes  his  levy,  and  if  he 
neglect  to  claim  it  then,  he  is  held  to  have  waived  the  right. 
If  made,  the  officer,  if  the  estate  exceed  in  value  the  amount 
exempted,  causes  the  same  to  be  appraised,  and  the  appraisers 
decide  whether  the  premises  can  be  divided  without  injury. 
If  they  can  be,  the  homestead  is  set  apart  and  the  balance 
may  be  sold.  If  they  cannot  be  divided,  the  officer  sells  the 
whole  estate  and  pays  the  exempted  amount  to  the  debtor.^ 
Where  the  debtor  claimed  his  exemption  on  the  day  of  the 
sale  upon  execution,  the  sheriff  was  held  bound  to  allow  it. 
And  where  he  allowed  the  debtor  thirty  dollars  in  money  out 
of  the  personal  estate,  he  could  only  claim  $270  out  of  the 
real.2  The  privilege  of  homestead  is  not  in  itself  an  exemp- 
tion, but  a  right  to  obtain  one  in  the  manner  prescribed  ; 
and  if  the  debtor  fails  to  avail  himself  of  it,  it  is  of  no  effect.* 

15.  In  South  Carolina,  a  debtor's  estate  is  subject  to  be  set 
off  to  satisfy  the  execution  of  a  creditor,  unless  he  apply  to  the 
officer  holding  the  same,  if  his  estate  exceed  in  value  the 
homestead  exemption,  to  have  a  homestead  of  the  prescribed 
value  set  off  by  commissioners.  If  it  exceed  |1,000,  and  is 
not  divisible,  the  debtor  may  save  his  estate  from  sale  by 
paying  the  excess  of  the  estate  above  that  sum  ;  otherwise,  the 
same  may  be  sold,  and  out  of  the  proceeds  |1,000  is  to  be 
paid  to  the  debtor,  to  be  applied,  under  the  direction  of  the 
court,  to  the  purchase  of  a  new  homestead.  And  if  he  pay 
the  excess  of  the  estate  above  |1,000,  he  holds  the  same  ex- 
empt as  to  all  debts  contracted  prior  to  such  payment.^  And 
if  this  is  not  done  in  his  lifetime,  the  same  may  be  set  out  by 
commissioners  to  his  widow.^ 

1  Stat.  18G8. 

2  Purd.  Dig.  433;  Bowman  v.  Smiley,  31  Penn.  225;  Miller's  Appeal,  16 
Penn.  St.  300 ;  Dodson's  Appeal,  25  Penn.  St.  234. 

8  Seibert's  Appeal,  73  Penn.  St.  361. 

*  Lines'  Appeal,  2  Grant's  Cases,  198.  6  Rev.  Stat.  1873. 

6  Act  1851,  p.  85 ;  Manning  v.  Dove,  10  Rich.  403. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  879 

15  a.  In  Tennessee,  the  householder  desh-ing  to  secure  a 
homestead,  makes  a  dechiration  to  that  effect,  signed,  sealed, 
witnessed,  and  registered.  When  it  is  set  out,  it  is  done  by 
appraisers  by  metes  and  bounds,  including  a  dwelling-house. 
And  if  it  is  not  divisible,  an  officer,  in  levying  upon  the  estate; 
may  sell  the  whole  and  pay  the  $1,000  into  the  clerk's  office 
of  the  court,  to  be  laid  out,  under  direction  of  the  court,  in 
the  purchase  of  a  new  homestead. ^ 

15  h.  In  Texas,  if  the  homestead  consists  of  more  than 
two  hundred  acres,  the  debtor  selects  which  two  hundred 
acres  shall  be  held  exempt.  If  he  fail  to  do  this,  the  sheriff 
holding  an  execution  against  him  may  do  it  by  commis- 
sioners.2 

16.  In  Vermont,  if  a  creditor  intend  to  set  off  a  portion  of 
a  debtor's  estate,  on  the  ground  that  it  exceeds  in  value  what 
is  exempted  by  law,  so  much  of  the  same  is  first  set  out  by 
appraisers  to  the  debtor,  if  he  elects  to  have  it  done,  and 
the  surplus  may  be  levied  on.  After  the  debtor's  death,  the 
homestead  is  set  off  by  the  court  of  probate.^  But  if  the 
premises  left  by  a  householder  are  of  greater  value  than 
the  homestead  exemption,  and  cannot  be  divided  so  as  to  give 
the  widow  her  homestead  therein,  there  may  be  a  decree  in 
equity  for  the  sale  thereof,  and  the  amount  of  the  homestead 
exemption  paid  into  court  for  her  use  and  that  of  the  children.^ 

16  a.  In  Virginia,  unless  the  deed  b}^  which  the  house- 
holder acquires  title  to  the  estate  declares  it  to  be  for  a  home- 
stead, he  does  it  by  a  deed  duly  recorded,  setting  forth  his 
intention  to  claim  as  a  homestead  what  he  therein  describes. 
And  this  may  be  land  in  which  he  has  an  equitable  as  well 
as  a  legal  title.  So  if  it  is  levied  on,  he  may  select  it,  and  if 
what  he  selects  be  of  greater  value  than  the  homestead  ex- 
emption, and  it  cannot  be  divided  and  set  aj)art,  the  whole  is 
to  be  sold,  and  out  of  the  proceeds  the  court  may  order  the 
value  of  the  homestead  to  be  invested  in  a  new  one.^ 

17.  In  Wisconsin,  the  debtor  selects  and  sets  out  his  home- 
stead by  metes  and  bounds,  and  is  to  notify  the  officer  who  is 

1  Stat.  1868,  c.  85,  1817,  c.  71 ;  19  Am.  Law  Reg.  14.  2  stat.  1870. 

8  Corap.  Stat.  390,  391 ;  Howe  v.  Adams,  28  Vt.  544 ;  Stat.  1862,  Append.  70. 
<  Chaplin  v.  Sawyer,  35  Vt.  286.  s  Code  1873. 


380  LAW   OP   REAL  PROPERTY.  [BOOK   I. 

about  to  lev}'  upon  his  estate  what  he  claims  to  hold  exempt, 
with  a  description  of  the  same.  And  if  the  creditor  objects 
as  to  the  value  of  what  is  thus  claimed,  he  may  have  the 
same  surveyed  and  set  out  so  as  to  give  the  debtor  the  requi- 
site value. ^  If  a  debtor's  farm  be  under  a  mortgage,  or 
under  a  lien,  and  he  die,  and  his  estate  sells  for  enough  to  pay 
his  debts,  leaving  a  surplus,  the  judge  may  order  enough  of 
this  to  be  invested  in  a  homestead  for  the  family  of  the  de- 
ceased. The  court  may  order  five  hundred  dollars  to  be 
invested  in  a  new  homestead ;  and  if  the  wife  is  insane,  the 
court  may  order  the  homestead  sold  and  direct  as  to  the  in- 
vestment of  the  proceeds.^ 


DIVISION  IV. 

HOW  FAR   HOMESTEAD   EIGHTS   ANSWER   TO  ESTATES. 

1, 1  a.  Their  analogy  to  estates  for  life.     In  Arkansas  and  Alabama. 

2.    Nature  of  the  interests  in  homestead  estates  in  California. 

2  a.  In  Florida. 
3, 3o.  Natm-e  of  these  in  Illinois.    In  Georgia. 

4.    Nature  of  these  in  Indiana. 
5, 5  a.  Nature  of  these  in  Iowa.     In  Kentucky. 

6.  Nature  of  these  in  Maine. 

7.  Nature  of  these  in  Massachusetts. 

8.  Nature  of  these  in  Michigan. 

9.  Nature  of  these  in  Minnesota. 

10, 10  a.  Nature  of  these  in  Mississippi.     In  Missouri  and  Nebraska. 

11.  Nature  of  these  in  New  Hampshire. 

12.  Nature  of  these  in  New  York. 

12  a.  In  Nevada,  North  Carolina,  and  New  Jersey. 

13.  Nature  of  these  in  Ohio. 

14.  Nature  of  these  in  Pennsylvania. 
14  a.  In  South  Carolina  and  Tennessee. 

15.  Nature  of  these  in  Texas. 

16, 16  a.  Nature  of  these  in  Vermont.     In  Virginia. 
17.    Nature  of  these  in  Wisconsin. 

1.  When  it  is  sought  to  define  the  nature  and  character  of 
the  property  or  estate  which  one  has  in  the  homestead  which 
the  law  creates  in  his  favor,  and  what  rights  and  duties  are 
attached  to  the  same,  it  will  be  found  difficult  to  do  more 

1  Stat.  c.  134,  §  23;  Stat.  1858,  c.  124,  §  23.  2  Stat.  1873,  p.  111. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  381 

than  borrow  the  language  of  the  statutes  and  of  courts  in 
construing  them  in  the  different  States,  though,  with  the  ex- 
ception of  a  few  where  the  wife  and  children  take  estates  of 
inheritance,  most  of  the  incidents  of  estates  for  life  would  be 
considered  as  attaching  to  homestead  rights.^ 

1  a.  In  Arkansas,  the  homestead  right  continues  after  the 
death  of  the  owner,  to  the  use  of  his  widow  and  child  or 
children,  so  long  as  they  continue  to  occupy  the  premises.^ 
Whereas,  in  Alabama,  if  the  land  holden  by  the  husband  be 
held  lease  for  a  term  of  years,  the  right  does  not  attach  so  as 
to  go  to  his  widow  at  his  death.^ 

2.  In  California,  the  homestead  is  something  coming  out  of 
the  general  property  in  the  land  of  the  husband,^  in  which 
case  the  wife  has  no  estate  therein,^  or  out  of  the  estate  of 
husband  and  wife,^  and  consists  of  a  qualified  right  in  the 
husband  to  convey  it,  and  a  right  in  the  husband  and  wife  to 
enjoy  the  premisses  until  a  new  homestead  is  acquired,  or  its 
character  as  homestead  is  lost.  But  this  right  of  occupancy 
has  nothing  of  the  character  of  joint-tenancy  in  it.  All  the 
present  right  which  the  wife  acquires  during  the  life  of  the 
husband  is,  that  this  right  of  homestead  shall  continue  until 
she  consents  to  its  being  aliened,  or  another  homestead  is  ac- 
quired, or  the  same  is  abandoned.'^  But  in  an  earlier  as  well 
as  a  later  case,^  it  was  declared  by  the  court  that  they  became 
joint  owners  of  the  property,  with  the  right  of  survivorship, 
and  that  the  homestead  right  in  a  husband  and  wife  is  one  of 
joint-tenancy  under  the  act  of  1860.  This  homestead  right 
may  be  released,  but  not  sold  or  transferred  to  another,  since, 
being  a  personal  privilege,  it  cannot  be  assigned.^  But  so  far 
as  the  wife's  right  is  concerned,  she  can  only  protect  it 
through  the  husband,  or  enforce  it  by  uniting  with  him  ;  and 
the  same  is  true  of  the  protection  of  the  rights  of  the  chil- 
dren.i*^  She  cannot,  therefore,  sue  to  recover  the  premises 
without  joining  her  husband  ;  ^^  though,  where  a  purchaser 

1  Kerley  v.  Kerley,  13  Allen,  287.  2  Stat.  1858,  §  68. 

s  Pizzaler  v.  Campbell,  46  Ala.  40.  *  Gee  v.  Moore,  14  Cal.  472. 

6  Bowman  v.  Norton,  16  Cal.  217.  ^  Qqq  j,.  Moore,  sup. 

7  Gee  V.  Moore,  14  Cal.  472 ;  Bowman  v.  Norton,  16  Cal.  217. 

8  Dunn  V.  Tozer,  10  Cal.  171 ;  Barber  v.  Babel,  36  Cal.  11. 

9  Bowman  v.  Norton,  sup. ;  Stat.  1862.        i"  Guiod  v.  Guiod,  14  Cal.  506. 
11  Poole  V.  Gerrard,  6  Cal.  71. 


382  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

from  the  husband,  in  whose  deed  the  wife  did  not  join,  brought 
ejectment  for  the  premises,  and  the  husband  neglected  to  de- 
fend, the  wife  Avas  allowed  to  do  so  alone. ^  But  if  the  wife 
dies  in  the  lifetime  of  the  husband,  the  homestead  is  left  to 
his  control,  so  that  if  he  mortgage  the  premises,  it  will  bind 
the  children,  or  a  second  wife  who  shall  marry  him  subse- 
quently to  such  mortgage.^  If  the  wife  survive  the  husband, 
the  judge  of  probate  may  set  apart  the  premises  for  the  bene- 
fit of  the  wife  and  children,  and  if  he  have  no  wife  nor  chil- 
dren, it  may  be  set  out  to  his  next  heirs  at  law.^  She  can 
recover,  however,  only  one  homestead,  though  her  husband 
may,  during  his  life,  have  owned  several.*  But  whether  she 
takes  this  in  her  own  right  or  in  trust  for  the  children,  is  un- 
settled.^ On  the  death  of  husband  or  wife,  the  homestead 
vests  absolutely  in  the  survivor,  free  from  any  liability  for 
any  debt  of  either  contracted  before  his  or  her  death,  except 
such  as  it  was  subject  to  in  the  lifetime  of  both.  Upon  the 
death  of  a  husband,  the  judge  of  probate  sets  apart  from  his 
estate  the  homestead  for  the  use  of  the  family,  to  be  the 
property  of  the  widow  if  there  are  no  minor  children.  If 
there  are,  she  takes  half,  and  the  child  or  children  the  other 
half.  And  although  it  is  subject  to  valid  existing  liens,  it 
ceases  to  be  assets  for  the  payment  of  the  debts  of  the  de- 
ceased.^ If  one  owning  land  in  partnership  dies,  his  widow 
cannot  claim  homestead  out  of  it."  If  a  widow  have  a  home- 
stead set  out  in  her  deceased  husband's  estate,  she  holds  it 
for  the  benefit  of  herself  and  children.  But  if  she  marries 
again,  and  her  second  husband  has  a  homestead,  she  may,  on 
his  death,  claim  a  homestead  also  out  of  his  estate  to  her  own 
use.  And  if  a  husband  is  tenant  in  common  of  an  estate 
and  dies,  his  widow  may  have  a  homestead  out  of  the  same.^ 
Under  the  statute  of  1862,  however,  the  children  of  parents 
having  a  homestead  have  no  interest  in  it.  Upon  the  death 
of  one,  it  survives  to  the  other.^ 

1  Cook  V.  McChristian,  4  CaL  24. 

2  Benson  v.  Aitken,  17  CaL  163 ;  Himmelmann  v.  Schmidt,  23  Cal.  120. 

3  Wood's  Dig.  483,  484.  <  Taylor  v.  Hargous,  4  Cal.  268. 
«  Estate  of  Tomkins,  12  CaL  125.                6  Matter  of  Orr,  29  Cal.  103. 

'  Kingsley  v.  Kingsley,  39  Cal.  665.  8  Higgins  v.  Higgins,  46  Cal.  259. 

9  Rich  V.  Tubbs,  41  Cal.  84. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  383 

2  a.  The  owner  of  a  homestead  may  dispose  of  it,  in  Florida, 
by  last  will,  and  if  he  or  she  die  intestate,  it  descends  to  his 
or  her  issue  then  living.  If  there  be  no  children,  it  goes  to 
the  widow  ;  and  if  there  is  no  widow  nor  children,  it  may  be 
sold  to  satisfy  debts.^ 

3.  In  Illinois,  the  right  of  a  widow  continues  during  her. 
life,  and  that  of  her  children  until  twenty-one  years  of  age,  pro- 
vided they  or  some  of  them  continue  to  occupy  the  same  as  a 
homestead.2  But  the  interest  of  homestead  in  land  is  not  an 
estate  :  it  is  merely  an  exemption  and  suspension  from  the  con- 
veyance of  a  fee  in  the  laud  until  the  premises  are  abandoned, 
or  possession  is  surrendered.^  It  does  not  merge  in  a  widow's 
right  of  dower  in  the  same  premises.  These  rights  are  dis- 
tinct from  and  independent  of  each  other,  and  a  widow  may 
have  both  out  of  the  same  estate.^  But  if  husband  and  family 
remove  from  or  abandon  the  homestead,  neither  he  nor  they 
can  resume  it  so  as  to  cut  off  liens  created  during  such  aban- 
donment.^ But  she  cannot  claim  the  benefit  of  the  statute 
while  her  husband  is  alive.  He  only  can  assert  the  claim,^ 
unless  she  shall  have  been  divorced  for  his  fault,  in  which  case 
she  may  claim  it  as  a  widow. ^  So  she  may  if  her  husband 
abandons  her,  and  she  continues  to  occupy  the  homestead.^ 
So  if  he  ill-treats  her,  and  drives  her  away  from  her  home,  and 
she  then  obtains  a  divorce,  and  the  children  are  committed  to 
her  charge,  she,  as  the  head  of  a  family,  may  have  homestead 
assigned  to  her  as  alimony,  and  hold  it  for  herself  and  her 
children  after  her.^  And  if  a  husband  abandon  his  wife  and 
family,  and  she  is  forcibly  expelled,  she  may  have  process  in 
her  own  name  to  recover  possession  of  the  premises. ^^  Though 
the  right  of  homestead  was  designed  for  the  protection  of  the 
wife  and  children  more  than  of  the  husband,  he  holds  the 
estate,  to  a  certain  extent,  as  a  trustee.    And  though,  if  neces- 

1  Thompson,  Dig.  1847,  p.  357.  ^  m.  stat.  p.  650. 

8  McDonald  v.  Crandall,  43  111.  232  ;  Black  v.  Curran,  14  Wall.  463. 

4  Walsh  V.  Reis,  60  111.  477. 

5  Titman  v.  Moore,  43  111.  170  ;  Veasey  v.  Trustees,  59  111.  158,  188. 

6  Getzler  v.  Saroni,  18  111.  518. 

7  Vanzant  v.  Vanzant,  2t  111.  556.  8  Titman  v.  Moore,  43  HI.  169. 

9  Bonnell  v.  Smith,  53  Ul.  383.  ^  Mix  v.  King,  55  111.  434. 


384  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

sarj,  he  may  purchase  in  an  outstanding  title  for  the  protection 
of  the  estate,  and  bind  it  for  the  purchase -money,  he  cannot 
thus  bind  it  if  such  purchase  was  not  necessary.^ 

3  a.  In  Georgia,  a  widow  takes  no  homestead  if  she  have 
no  children,  and  even  if  she  has  a  right  to  it  on  the  ground 
of  having  children,  her  dower  must  first  be  set  out  before  the 
homestead  can  be.^  JNIinor  children  take  the  homestead  sub- 
ject to  the  widow's  right  of  dower,  to  the  exclusion  of  the 
father's  creditors.^  And  where  the  father  died,  having  devised 
his  estate  to  his  minor  children,  whose  guardian  chose  to  have 
the  same  set  off  as  homestead  rather  than  claim  it  under  the 
devise,  it  was  held  to  take  the  estate  from  the  control  of  the 
ordinary,  and  to  give  it  to  the  children  by  right  of  homestead.* 
It  is  to  be  held  for  the  use  of  the  widow  and  children 
during  her  life  or  widowhood,  and  upon  her  death  or  mar- 
riage it  is  equally  divided  among  the  children,  as  the  wife 
and  children  are  regarded  the  principal  beneficiaries  under  the 
homestead  law.^  But  the  estate  of  a  wife  in  a  homestead  is 
not  one  of  inheritance  ;  it  ceases  upon  her  death  or  ceasing  to 
be  a  member  of  the  family,  and  if  both  husband  and  wife  die 
vrithout  leaving  minor  children,  the  homestead  right  is  gone, 
and  the  same  reverts  to  the  estate  of  the  husband.^  It  is,  how- 
ever, subject  to  the  dower  right  of  the  widow,  and  she  does  not 
take  the  full  value  of  the  homestead  in  addition  to  her  dower.^ 
Whether  minor  children  can  claim  a  homestead  in  their 
father's  estate,  depends  upon  its  being  insolvent.  If  it  is, 
they  may  claim  it  against  creditors ;  if  it  is  not,  there  is  no 
homestead,  the  estate  passes  at  his  death  to  his  heirs,  subject 
only  to  the  widow's  right  of  dower,  she  having  no  right  to 
claim  a  homestead  in  such  case.^  If  the  husband  in  his  life- 
time neglect  or  refuse  to  have  a  homestead  set  out,  his  widow 
may  have  it  done  after  his  death.^ 

1  Cassel  V.  Ross,  33  HI.  257.  2  stat.  1873. 

*  Roff  V.  Johnson,  40  Ga.  555. 

*  Sloane  v.  Nance,  45  Ga.  312;  Hodo  v.  Johnson,  40  Ga.  441. 

*  Burnside  v.  Terry,  45  Ga.  629. 
8  Heard  v.  Downer,  47  Ga.  632. 

7  Adams  v.  Adams,  46  Ga.  630 ;  HicksoQ  v.  Bryan,  41  Ga.  621. 

8  Kemp  V.  Kemp,  42  Ga.  623. 

9  Hodo  V.  Johnson,  40  Ga.  441. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  385 

4.  In  Indiana,  the  right  of  homestead  in  the  widow  is  inde- 
pendent of  any  provision  made  for  her  by  devise  of  her  hus- 
band.^ The  widow  of  a  deceased  owner  may  have  $300  of 
her  husband's  estate  set  off  to  her.^  So  a  wife  may  have 
this  homestead,  if  she  is  the  debtor  and  have  estate  of  her 
own.^ 

5.  In  Iowa,  upon  the  death  of  the  husband  or  wife,  the  es- 
tate goes  to  the  survivor,  and  if  there  be  no  survivor,  it  de- 
scends to  the  issue  of  the  husband  or  wife,  unless  otherwise 
devised  by  will,  to  be  held  by  such  issue  exempt  from  any 
antecedent  debts  of  the  parents  or  issue.  By  "  issue  "  in  the 
statute  is  meant  the  issue  of  husband  or  wife,  whichever  it 
may  be,  who  owned  the  fee.^  The  same  may  be  devised,  sub- 
ject to  the  rights  of  the  survivor.^  The  right  of  the  widow  is 
to  occupy  the  estate  during  her  life,  and  to  take  the  rents  and 
profits  thereof  to  her  own  use.  At  her  death  it  descends  to 
the  proper  heirs  of  the  estate.^  She  does  not  take  a  fee  in  the 
homestead,  nor  can  she  sell  it  to  another.  If  she  do  so, 
the  heirs  of  the  husband  may  come  in  and  divide  the  estate 
between  them.''  Homestead  laws  are  simply  statutes  of 
exemption  rather  than  a  conferring  of  primitive  rights.^  A 
widow  taking  a  homestead  as  survivor  of  her  husband  cannot 
sell  it  or  dispose  of  it.  But  her  dower,  by  the  law  of  Iowa 
prior  to  1853,  she  took  in  fee.  She  cannot  claim  dower  and 
homestead  out  of  the  same  estate.  If  she  claims  dower,  she 
waives  her  right  of  homestead.^  But  the  widow  has  a  right 
to  enjoy  the  homestead,  although  she  marries  again  ;  nor  can 
the  heirs  of  the  husband  have  partition  while  she  occupies  it. ^^ 

5  a.  In  Kentucky,  after  the  death  of  the  owner  of  the  home- 
stead, his  widow  and  unmarried  children,  so  long  as  she  occu- 


1  Loring  v.  Craft,  16  Ind.  110.  '  2  gt^t.  i862,  p.  368. 

"  Crane  v.  Waggoner,  33  Ind.  83. 
<  Burns  v.  Keas,  21  Iowa,  260. 

5  Code,  1873,  Tit.  18,  c.  2,  §  .3072 ;  Burns  v.  Keas,  21  Iowa,  257  ;   Floyd  ». 
Mosier,  1  Iowa,  513 ;  Rhodes  v.  McCormick,  4  Iowa,  371. 
•»  Floyd  V.  Mosier,  sup. 

7  Size  V.  Size,  24  Iowa,  581 ;  Meyer  v.  Meyer,  23  Iowa,  359. 

8  Burns  v.  Keas,  21  Iowa,  257 ;  Cotton  v.  Wood,  25  Iowa,  48. 

9  Meyer  v.  Meyer,  23  Iowa,  359. 

10  Nicolas  V.  Purczell,  21  Iowa,  265;  Dodds  v.  Dodds,  26  Iowa,  312. 
VOL.  I.  25 


38()  LAW  OF  REAL  PROPERTY.  [bOOK  1. 

pies  it  at  all,  occupy  the  same  together,  until  the  youngest 
is  twenty-one  j^ears  of  age.  Nor  will  her  abandonment  of  the 
estate  affect  the  rights  of  the  minor  children.  And  the  same 
rule  applies  to  husband  and  children,  if  the  homestead  estate 
belongs  to  the  wife  and  she  dies.  Her  interest  in  the  homestead 
is  taken  into  estimate  in  setting  out  her  dower.^ 

5  h.  In  Louisiana,  if  a  wife  die,  leaving  real  estate  and  also  a 
husband  and  children,  he  cannot  claim  homestead  out  of  it 
against  the  creditors  of  the  wife.^ 

6.  In  Maine  and  Massachusetts,  the  widow  may  occup}^  the 
premises  during  her  widowhood,  and  the  children  during  their 
minority  after  the  father's  death.-'' 

7.  In  Massachusetts,  this  right  is  set  off  to  the  widow  in  the 
same  manner  as  dower.  But  what  of  the  estate  is  over  and 
above  this  homestead  right  is  subject  to  devise,  descent, 
dower,  and  sale  for  payment  of  debts  of  the  deceased.*  This 
right  of  homestead  is  something  in  addition  to  the  widow's 
right  of  dower  and  allowance  made  by  the  judge  of  probate, 
and  does  not  depend  upon  the  husband's  owing  debts  or  not 
at  his  decease.^  And  if  the  husband  were  in  possession  of  the 
premises  at  his  death,  the  widow  may  continue  to  occupy  them 
without  their  having  been  set  out  to  her  by  the  judge  of  pro- 
bate, if  they  do  not  exceed  the  amount  in  value  of  what  is  ex- 
empted.^ It  is  something,  moreover,  which  she  may  sell,  and  is 
not  obliged  to  make  use  of  to  enjoy .'^  This  homestead  right 
is  not  a  fee-simple  estate.  It  is  a  freehold  estate  in  the  prem- 
ises, to  be  held  while  the  husband  is  a  householder,  and  by 
his  widow  after  his  death,  and  his  children  by  her  during 
widowhood,  and  by  the  children,  or  by  such  of  them  as  choose 
to  occupy  it,  to  be  enjoyed  by  them  together,  until  the  young- 
est is  twenty-one  years  of  age,  provided  some  one  of  them 
continues  to  occupy  the  same.  The  right  of  possession  and 
enjoyment  is  in  those  only  of  the  family  who  remain  in  occu- 
pation of  the  homestead,  and  this,  free  from  intrusion  of  cred- 

1  Gen.  Stat.  1873.  p.  433.  2  Burnett  v.  Walker,  23  La.  335. 

8  Rev.  Stat.  1871,  c.  81,  §  60;  Mass.  Gen.  Stat.  c.  104. 
*  Gen.  Stat.  c.  104. 

5  Monk  t;.  Capen,  5  Allen,  146;  Mercier  v.  Chase,  11  Allen,  194;  Bates  v. 
Bates,  97  Mass.  395. 

6  Parks  V.  Reilly,  5  Allen,  77.  "  Mercier  v.  Chase,  sup. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  387 

itors  or  strangers.  Nor  can  either  member  of  the  family- 
transfer  any  right  to  a  stranger  without  the  consent  of  the 
others.  The  title  remains  so  long  as  the  widow  remains  un- 
married, or  any  child  under  age  continues  to  occupy  it.^  The 
title  in  the  homestead  estate  after  the  death  of  the  husband 
and  father,  and  so  long  as  either  the  widow  remaining  unmar- 
ried, or  any  child  under  age  continues  to  occupy  it,  most  nearly 
resembles  that  of  husband  and  wife  at  common  law,  under  a 
grant  to  both  of  them,  by  which  the}'  become  seised  not  of 
moieties  but  of  the  entirety,  per  tout  et  non per  my.,  and  neither 
could  dispose  of  any  part  without  the  assent  of  the  other.^ 
Nor  can  the  husband  affect  the  right  of  his  wife  to  enjoy  the 
homestead  by  an};-  provision  of  his  will.  And  continuing  to 
occupy  a  room  in  a  dwelling-house  owned  by  a  husband  at  his 
death,  as  a  homestead,  by  the  widow  for  the  purpose  of  storing 
her  furniture,  is  such  an  occupancy  as  preserves  her  right  of 
homestead  in  the  premises.^  And  it  is  this  estafe,  exclusive 
of  the  reversionary  interest  in  the  premises,  which  a  husband 
cannot  convey  unless  his  wife  join  in  the  conveyance.*  The 
estate  of  homestead  exists  for  the  benefit  of  the  widow, 
though  the  husband  died  owing  no  debts,  and  though  she  has 
already  taken  her  dower  out  of  the  estate,  and  she  may  claim 
it  against  the  adult  heirs  of  the  husband,^ 

8.  In  Michigan,  both  the  constitution  and  statutes  secure 
to  the  widow  the  rents  and  profits  of  the  homestead  during 
widowhood,  unless  she  sooner  acquire  a  homestead  of  her  own, 
and  they  do  the  same  to  the  minor  children  of  the  householder 
so  long  as  they  are  minors.  But  these  rights  depend  upon  its 
being  occupied  by  the  widow  and  children,  if  any.^  And  the 
law  has  given  a  feme  covert  all  the  power  in  relation  to  a  home- 
stead estate  which  a,  feme  sole  has.  But  it  is  no  more  tJ.an 
she  has  in  respect  to  her  right  of  dower.  The  only  way  she 
can  convey  either,  or  affect  her  right  to  the  same,  is  by  joining 
with  her  husband  in  a  deed  of  mortgage.'' 

1  Abbott  V.  Abbott,  97  Mass.  136.  2  ibid, 

«  Brettun  v.  Fox,  100  Mass.  234. 

*  Smith  V.  Provin,  4  Allen,  516  ;  "White  v.  Rice,  5  Allen,  76  ;  Doyle  r  Coburn, 
6  Allen,  71 ;  Silloway  v.  Brown,  12  Allen,  80;  Kerley  v.  Kerley,  13  Allen,  287; 
Abbott  V.  Abbott,  97  Mass.  136  ;  Swan  v.  Stephens,  99  Mass.  10. 

6  Monk  V.  Capen,  5  Allen,  146 ;  Silloway  v.  Brown,  12  Allen,  33. 

6  Const,  art.  16.     Stat.  1848,  c.  132.  1  Ring  v.  Burt,  17  Mich.  472. 


388  LAW    OF    R-EAL    PROrERTY.  [BOOK    I. 

9.  In  Minnesota,  the  exemption  secures  to  the  widow  the 
enjoyment  of  the  estate  so  long  as  she  remains  iinmairied,  and 
occupies  the  premises,  and  to  the  children  until  the  youngest 
is  of  the  age  of  twenty-one  years,  provided  the  widow  or  some 
one  of  the  children  continue  to  occupy  the  same.^ 

10.  In  Mississippi,  upon  the  decease  of  the  husband  and 
father,  whatever  may  be  his  estate  in  the  premises,  whether 
in  fee,  freehold,  or  for  years,  it  descends  to  his  widow  and 
children,  and,  after  her  ceasing  to  be  his  widow,  to  the  chil- 
dren. And  if  he  leave  no  widow,  the  children,  if  any,  take 
the  same  by  descent.^  The  estate  is  not  the  subject  of  admin- 
istration, nor  does  it  interfere  with  the  dower  right  of  the 
widow.  It  descends  to  the  widow  and  children.^  But  during 
the  owner's  life  the  estate  is  his,  and  during  that  time  neither 
the  wife  nor  children  have  any  vested  interest  in  the  same. 
They  take  it,  on  his  decease,  as  land  descends  to  heirs.* 

10  a.  In  Missouri,  if  the  owner  die  leaving  a  widow  and 
children,  the  homestead  goes  to  them  until  they  are  of  age.^ 

In  Nebraska,  at  the  ddath  of  the  owner  or  debtor,  the  home- 
stead descends  and  vests  in  his  heirs  at  law  or  legatees.  But 
it  remains  exempt  from  forced  sale  as  long  as  it  is  owned  and 
occupied  by  the  debtor.^ 

11.  In  New  Hampshire,  some  of  the  earlier  decisions  would 
seem  to  warrant  the  proposition  that  a  homestead  right  is  not 
an  estate ;  it  is  inchoate,  not  assignable  or  transferable  as 
something  of  ascertained  value  by  the  one  in  whom  it  vests, 
until  the  same  shall  have  been  separated  and  set  apart  from 
the  general  estate  out  of  which  it  issues.'^  But  by  Tucker  v. 
Keniston,  since  decided,  the  homestead  to  be  set  off  is  the 
whole  property,  and  is  not  to  exceed  five  hundred  dollars. 
Not  a  contingent  life-estate  merely,  but  the  entire  estate,  and 
against  that  there  shall  be  no  further  proceedings.     And  it  is 

»  Folsom  V.  Carli,  5  Minn.  337  ;  Tillotson  v.  Millard,  7  Minn.  520. 

2  Smith  V.  Estell,  34  Miss.  527  ;  Morrison  v.  McDaniel,  30  Miss.  217  ;  Whit- 
comb  V.  Reid,  31  Miss.  567  ;  Campbell  v.  Adair,  45  Miss.  170. 

3  Smith  V.  Wells,  46  Miss.  71. 

*  Thorns  V.  Tlioms,  45  Miss.  275,  276 ;  Parker  v.  Dean,  45  Miss.  423. 
6  Gen.  Stat.  1865,  c.  111.  6  Gen.  Stat.  1873,  p.  616. 

T  Atkinson  v.  Atkinson,  37  N.  H.  434 ;  Gunnison  v.  Twitchell,  38  N.  H.  67 ; 
Horn  V.  Tufts,  39  N.  H.  485 ;  Foss  v.  Strachn,  42  N.  H.  42. 


CH.  IX.  §  2.]  ESTATES   BY   MAERIAGE.  389 

not  to  be  considered  a  contingent  or  inchoate  estate  except  as 
it  ma}'-  be  voluntarily  sold  or  abandoned.^  But  the  widow 
has  no  vested  estate  until  the  homestead  is  set  out  to  her. 
Until  then,  it  is  an  inchoate  right.^  The  estate  of  homestead 
is  a  conditional  life-estate.^  If  a  debtor's  estate  is  levied  before 
the  homestead  is  set  out,  he  owns  his  homestead  as  tenant  in 
common  with  the  owner  of  the  rest  of  the  estate,  and  may 
have  partition  of  the  same.*  The  statute  vests  the  homestead 
in  the  head  of  the  family  in  his  own  present  right  as  general 
owner,  and  not  as  a  trustee  of  any  one.^  It  secures  to  the 
widow  the  occupation  of  the  estate  during  life  if  she  choose, 
and  to  the  children  while  minors.  Until  set  out  to  her,  the 
right  is  inchoate.  If  the  estate  is  under  mortgage,  and  she 
has  to  pay  it  in  order  to  save  her  right,  she  becomes  subro- 
gated to  the  rights  of  the  mortgagee  for  contribution  from  the 
other  part-owners.^  At  the  husband's  death,  the  statute 
gives  the  homestead,  whether  set  off  or  not  from  the  part  which 
is  subject  to  his  debts,  to  the  widow  and  minor  children,  in 
her  or  their  own  right.'^  But  if  the  children  shall  have  arrived 
at  age,  the  widow  alone  is  entitled  to  the  homestead.^ 

12.  The  same  is  the  general  doctrine  in  New  York.  It 
cannot  be  sold  or  made  over  to  another.^  It  is  intended  for 
the  benefit  of  the  widow  for  life,  and  the  children  until  the 
youngest  is  of  age,  if  they  continue  to  occupy  the  same.^''  The 
householder  is  the  owner  of  the  estate,  but  the  homestead  ex- 
emption continues  until  the  death  of  the  householder  for  the 
benefit  of  his  widow  and  family,  until  the  youngest  child  is 
of  age,  or  the  death  of  the  widow,  they  or  some  one  of  them 
continuing  to  be  an  occupant  of  the  premises. ^^  But  the  right 
does  not  run  with  the  land  so  as  to  give  the  purchaser  a  right 
to  claim  what  his  vendor  might  have  enforced. ^^     ]|^Qr  jg  j^ 

1  Barney  v.  Leeds,  51  N.  H.  272 ;  Tucker  v.  Keniston,  47  N.  H.  208. 

2  Tidd  V.  Quinn,  52  N.  H.  341.  3  Locke  v.  Rowell,  47  N.  H.  49. 
4  Barney  v.  Leeds,  51  N.  H.  230.  5  stat.  1868,  §§  33-37. 

«  Norris  v.  Moulton,  34  N.  H.  392 ;  Norris  v.  Morrison,  s.  c.  45  N.  H.  490,  501. 
■?  Fletcher  v.  State  Bank,  37  N.  H.  391. 

8  Miles  V.  Miles,  46  N.  H.  201. 

9  Allen  V.  Cook,  26  Barb.  374 ;  Smith  v.  Brackett,  36  Barb.  573. 

10  3  Stat.  647.  "  4  Stat,  at  Large,  Pt.  3,  c.  260. 

12  Smith  V.  Brackett,  36  Barb.  571 ;  Allen  v.  Cook,  20  Barb.  374. 


390  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

regarded  as  an  incumbrance  or  lien  on  an  estate.  The  house- 
holder is  thereby  none  the  less  the  owner  of  the  entire  estate.^ 

12  a.  In  Nevada,  when  a  claim  for  a  homestead  exemption 
has  been  properly  made,  the  husband  and  wife,  if  he  have 
one,  hold  the  homestead  as  joint  tenants.^ 

In  North  Carolina,  a  homestead  estate  is  a  determinable  fee  ; 
the  entire  interest  in  and  control  of  it  is  vested  in  the  holder 
of  it.  Tlie  holder  is  not  impeachable  for  waste.  But  there  is 
still  an  interest  in  the  owner  over  and  above  the  homestead 
right,  answering  to  a  reversionary  interest,  but  it  is  not  the 
subject  of  levy  by  a  creditor  of  the  reversioner.^  At  the 
death  of  the  owner,  it  inures  to  the  widow  during  widowhood, 
if  she  have  children,  otherwise  to  her  in  her  own  right.  If  he 
have  children,  it  is  exempt  in  their  hands  during  the  minority 
of  any  of  them.  If  the  liusband  die  owing  no  debts,  no  home- 
stead can  be  set  out  of  his  estate  to  his  widow  and  children, 
since  this  is  only  done  to  protect  the  estate  from  creditors.* 
Nor  does  the  homestead  right  interfere  with  that  of  dower, 
so  that  if  the  widow  claims  a  homestead,  the  children  would 
take  it  subject  to  her  right  of  dower  in  the  same  estate.^ 

In  New  Jersey,  the  estate  continues  after  the  death  of  the 
householder  for  the  benefit  of  his  widow  and  family,  if  some 
one  of  them  occupy  it,  until  the  youngest  child  is  of  the  age 
of  twenty-one  years  and  during  the  life  of  the  widow.^ 

13.  In  Ohio,  the  exemption  continues  in  favor  of  an  unmar- 
ried minor  child  who  resides  upon  the  premises,  although  the 
widow  may  be  dead,  or  the  parent  from  whom  the  child  in- 
herits died,  leaving  neither  husband  nor  wife.'' 

14.  In  Pennsylvania,  the  widow's  right  is  special  and  pecu- 
liar. It  is  paramount  to  all  liens,  except  that  of  a  vendor  for 
the  purchase-money.^  It  does  not  depend  upon  her  accepting 
provision  or  otherwise,  which  is  made  for  her  by  her  husband's 
will.9  If  she  have  children,  she  takes  it  for  herself  and  them, 
for  the  use  of  the  family.     But  if  she  have  none,  she  takes 

1  Robinson  v.  Wile}-,  19  Barb.  161.  2  Comp.  L.  1873,  §  186. 

8  Poe  V.  Hardie,  65  N.  C.  447.  *  Hager  v.  Nixon,  69  N.  C.  108. 

5  Watts  V.  Leggett,  66  N.  C.  197.  6  Dig.  1868. 

7  Rev.  Stat.  1145;  Stat.  1860-68. 

8  Robinson  v.  Wallace,  39  Penn.  133  ;  Compher  v.  Compher,  25  Penn.  33. 

9  Compher  v.  Compher,  sup. ;  Hill  v.  HiU,  32  Penn.  514. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  391 

the  whole  absolutely.^  And  where  there  are  no  children,  she 
can  convey  the  premises,  when  set  out  to  her,  in  fee  by  her 
own  deed,  not  as  trustee,  but  as  owner.^ 

14  a.  In  South  Carolina,  the  exemption  continues  to  the 
widow  of  the  owner  and  his  minor  children  until  the  death 
or  marriage  of  the  widow  and  until  the  youngest  child  is  of 
age.  If  both  husband  and  wife  be  dead,  leaving  children, 
the  children,  whether  minors  or  not,  take  the  homestead  in 
the  same  manner  as  the  parents.  But  it  is  said  there  is  a  re- 
version after  such  estate  Avhich  is  the  subject  of  sale  or  devise.^ 

In  Tennessee,  at  the  death  of  the  owner,  a  homestead  goes 
to  his  widow  during  life  or  until  again  married,  and  on  her 
death  or  marriage  it  goes  to  the  minor  children.  And  if  she 
is  divorced  for  his  fault,  the  title  vests  in  her  by  a  decree  of 
the  court.^  And  so  much  of  a  husband's  homestead  remains 
to  the  widow  for  her  use  as  shall  make  her  dower  in  the  estate 
worth  $1,000.  But  she  cannot  have  a  homestead  of  that 
value  and  dower  also.^ 

15.  In  Texas,  the  homestead  right,  so  far  as  the  children 
are  concerned,  depends  upon  there  being  a  wife  to  take  at  the 
householder's  death.  If  he  have  no  wife,  he  may  convey 
the  estate,  or  it  may  be  levied  on  for  his  debt,  and  thereby  the 
rights  of  the  children  thereto  be  defeated.^  The  right,  more- 
over, is  held  subject  to  the  equities  and  incumbrances  existing 
thereon  at  the  time  it  was  acquired,  and  the  husband  may 
discharge  these  by  his  own  act.'^  The  administrator  of  one 
having  had  a  homestead  set  out  has  nothing  to  do  with  the 
estate  thus  assigned.^  And  if  he  leave  a  widow,  the  children 
cannot  have  partition  of  it  so  long  as  she  lives  and  remains 
the  head  of  the  family.^  And  where  the  court  grant  her  a 
decree  of  divorce  and  the  custody  of  the  children,  she  may 
have  the  use  of  the  homestead  assigned  to  her  during  life.^^ 

1  Purd.  Dig.  281 ;  Compher  v.  Compher,  sup. ;  Hill  v.  Hill,  sup. 

'^  Sipes  V.  Mann,  39  Penn.  414  ;  Nevin's  Appeal,  47  Penn.  230. 

8  Const,  art.  2,  §  32;  Rev.  Stat.  1873.  *  Stat.  18G8. 

6  Merriman  v.  Lacefield,  4  Heisk.  209. 

6  Taillock  V.  Eccles,  20  Texas,  792  ;  Brewer  v.  Wall.  23  Texas,  589. 

"!  White  V.  Shepperd,  IG  Tex.  172. 

8  Bassett  v.  Messner,  30  Tex.  604.  9  Hoffman  v.  Neuhaus,  30  Tex.  636. 

10  Tieman  v.  Tieman,  34  Tex.  525. 


392  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

16.  In  Vermont,  this  right  does  not  vest  any  title  in  the 
wife.  It  is  only  a  kind  of  lien  upon  the  estate  of  the  husband 
in  favor  of  the  wife.  It  only  becomes  an  estate  in  the  wife 
and  family  after  the  decease  of  the  husband. ^  But  though 
contingent  and  inchoate  during  his  life,  she  ma}^  enforce  it 
after  his  death,  although  he  may  have  conveyed  it  absolutely 
in  his  life,  if  she  did  not  join  in  the  conveyance.^  In  such 
case,  it  passes  to  the  widow  and  children,  if  anj^  in  due  course 
of  descent,  to  be  set  out  by  the  court  of  probate.^  And  they 
take  the  estate  subject  to  such  debts  of  the  intestate  as  he 
owed  at  the  time  of  purchasing  the  same.*  By  the  act  of 
1855,  the  homestead  is  limited  to  the  widow  and  minor  chil- 
dren.^ But  it  goes  as  an  entire  thing,  and  is  to  be  occupied 
accordingly.  If,  therefore,  the  children  be  scattered  or  live 
away  from  the  estate,  they  can  neither  claim  partition  of 
the  estate,  nor  rent  for  its  use  by  the  widow.  She  has  a 
right  to  hold,  control,  and  enjoy  it,  without  abatement  by 
any  of  the  children  who  are  not  members  of  the  family.*^  It 
is  independent  of  her  right  of  dower  ;  the  homestead  belongs 
to  her,  in  fee,  vesting  upon  the  death  of  the  husband,  and  on 
her  death  descends  to  her  heirs,  and  may  be  set  out  to  her  in 
the  same  lands  which  have  already  been  set  to  her  for  life  as 
dower.''  But  by  statute  1862,  the  same  commissioners  who 
set  out  a  widow's  homestead  may  set  out  her  dower,  provided 
the  homestead  do  not  equal  one  third  of  the  estate.  If  it  do, 
she  can  claim  no  dower ;  if  it  do  not,  the  dower  is  set  out 
after  the  homestead.  Though  the  giving  a  deed  of  her  home- 
stead does  not  affect  her  right  of  dower.^ 

16  a.  In  Virginia,  a  homestead,  after  the  death  of  the 
owner,  goes  to  the  widow  and  minor  children  until  her  death 
or  marriage,  and  after  that  event  it  remains  to  the  exclusive 
benefit  of  the  minor  children  until  the  youngest  is  of  age. 

1  Howe  V.  Adams,  28  Vt.  544  ;  Jewett  v.  Brock,  32  Vt.  65. 

2  Davis  V.  Andrews,  30  Vt.  678;  Jewett  v.  Brock,  sup. ;  McClary  v.  Bixby,  36 
Vt.  260. 

3  Comp.  Stat.  390,  391 ;  Day  v.  Adams,  42  Vt.  516. 

*  Simonds  v.  Powers,  23  Vt.  354;  Perrin  v.  Sargeant,  33  Vt.  81. 
6  Perrin  v.  Sargeant,  33  Vt.  86.  «  Reyes  v.  Hill,  30  Vt.  759. 

T  Doane  v.  Doane,  33  Vt.  649 ;  Chaplin  v.  Sawyer,  35  Vt.  290  ;  McClary  v. 
Bixby,  36  Vt.  257,  258.  ^  gtat.  1862,  appendix  70. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  893 

And  if  she  is  divorced  for  his  fault,  she  takes  the  homestead 
for  herself  and  children  in  the  same  manner  as  if  he  were 
dead  ;  and  if  it  is  not  set  out  in  his  lifetime,  the  widow  and 
children,  if  she  is  alive  and  unmarried,  otherwise  the  children, 
may  claim  it  in  the  same  manner  as  if  it  had  been  set  off  in 
the  husband's  lifetime.^ 

17.  In  Wisconsin,  the  estate  descends  to  the  widow  during 
widowhood  and  the  minority  of  any  of  their  infant  children 
who  survive  him.^ 


DIVISION  V. 

HOW  FAR   SUCH   EIGHTS   ARE   EXEMPT    FROM   DEBTS. 

1.      Principle  upon  vvliich  homesteads  are  exempt  from  debts. 
1  a.  To  what  extent  in  Alabama. 
2,  2  a.  To  what  extent  exempt  in  California  and  Florida. 

3.  To  what  extent  in  Georgia. 

4.  To  what  extent  in  Illinois. 

5.  To  what  extent  in  Indiana. 

6,  6  a.  To  what  extent  in  Iowa,  Kansas,  and  Louisiana. 

7.  To  what  extent  in  Maine. 

8.  To  what  extent  in  Massachusetts. 

9.  To  wiiat  extent  in  Michigan. 

10,  10  a.  To  what  extent  in  Minnesota,  Mississippi,  and  Missouri. 

11,  11  a.  To  what  extent  in  New  Hampshire,  Nebraska,  Nevada,  and  North 

Carolina. 

12.  To  what  extent  in  New  York. 

13.  To  what  extent  in  Ohio. 

14.  To  wliat  extent  in  Pennsylvania. 

15.  To  what  extent  in  South  Carolina. 

16.  To  what  extent  in  Texas. 

17,  17  a.  To  what  extent  in  Vermont  and  Virginia. 
18.      To  what  extent  in  "Wisconsin. 

1.  The  exemption  from  liability  for  the  debts  of  the  owner, 
while  in  some  States  it  is  all  but  absolute,  in  others  is  limited 
and  conditional.  With  few  exceptions,  it  does  not  extend  to 
what  is  due  for  the  purchase-money  of  the  premises.  In  many 
it  is  no  bar  to  a  recovery  under  a  mechanic's  lien,  and  in  sev- 
eral it  does  not  extend  to  debts  existing  at  the  time  of  acquir- 
ing the  estate.     The  modes  of  levying  upon  the  estate,  so  as 

1  Code  1873.  2  gtat.  1858,  c.  137,  §  2  ;  18G3,  1873. 


391  LAW   OF    REAL    PROPERTY.  [bOOK    L 

to  reach  Avhat  interest  the  debtor  has  therein  over  and  above 
the  exempted  right,  are  provided  for  in  the  statutes  of  the 
different  States,  and  are  not  uniform.  Most  of  the  statutes 
exempt  the  homestead  from  a  "forced  sale,"  but  this  is  not 
limited  in  all  cases  to  sales  under  process  of  law  upon  execu- 
tion, but  ill  Louisiana  extends  to  sales  made  for  the  purposes 
of  foreclosino-  mort^ajxes.^ 

1  a.  Though  in  Alabama  a  homestead  is  not  exempt  from 
process  to  enforce  the  payment  of  the  purchase-money,  if  a 
mortgage  be  given  for  the  purchase-money  of  an  estate  larger 
in  extent  than  the  homestead,  and  a  creditor  levy  on  the 
entire  estate,  he  cannot  relieve  his  share  by  compelling  the 
mortgagee  to  look  first  to  the  homestead  for  the  satisfac- 
tion of  his  debt.  The  right  of  exemption  comes  in  next  to 
the  contract  lien.^  The  exemption  of  homestead  does  not 
extend  to  laborer's  and  mechanic's  liens.  But  it  extends  to 
any  debts  contracted  after  the  adoption  of  the  constitution, 
in  all  cases  during  the  minority  of  the  children.^ 

2.  In  California,  the  estate  is  hable  for  vendor's  and  me- 
chanic's hens,  taxes,  and  mortgages  lawfully  created.  So  all, 
except  the  proper  homestead,  may  be  levied  on.  If  that  be 
twenty-five  hundred  square  yards  or  less,  and  is  of  greater 
value  than  five  thousand  dollars,  the  sheriff  may,  if  the  cred- 
itor so  elect,  sell  the  whole,  and  out  of  the  proceeds  pay  the 
debtor  that  sum.  If  it  exceed  that  quantity-  of  land,  and  is 
of  greater  value  than  the  prescribed  sum,  such  portion  of  it, 
including  the  dwelling-house,  as  near  as  may  be  of  that  value, 
may  be  set  apart  and  the  remainder  may  be  sold.*  If  a  levy 
and  sale  be  made  of  what  is  a  debtor's  actual  homestead,  the 
same  is  void  and  no  title  passes.^  And  even  if  the  judgment 
be  upon  the  debt  due  for  the  purchase-money,  it  would  make 
no  difference.  The  only  way  to  avail  of  the  vendor's  lien  is 
by  proceedings  in  equity.®  And  it  seems  that  a  wife  may 
claim  a  homestead  against  an  officer  who  levies  upon  the 

1  Le  Blanc  v.  St.  Germain,  25  La.  Ann.  289. 

2  Ray  V.  Adams,  45  Ala.  168.  3  19  Am.  Law  Reg.  2, 
<  Wood's  Dig.  483,  484  ;  Cohen  v.  Davis,  20  Cal.  187. 

5  Kendall  v.  CLark,  10  Cal.  18 ;  Ackley  v.  Chamberlain,  IC  Cal.  181. 

6  Wmiams  V.  Young,  17  Cal.  406. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  395 

estate  of  her  husband,  aud  may  apply  to  the  court  to  prevent 
a  levy  by  injunction,  even  if  the  declaration  of  homestead  has 
not  been  made  and  recorded,  so  far  as  to  require  the  officer 
to  exhaust  the  husband's  other  assets  before  levying  on  the 
homestead.!  The  levy,  it  seems,  must  be  upon  the  propor- 
tion of  the  whole  estate  over  and  above  the  value  of  the 
homestead.  If  the  whole,  for  example,  be  ten  thousand 
dollars,  the  levy  may  be  upon  five-tenths  of  the  estate.^ 

2  a.  In  Florida,  the  exemption  does  not  reach  claims  for  the 
purchase-money,  taxes,  or  for  erection  of  improvements  or 
labor  performed  upon  the  premises.-^ 

3.  In  Georgia,  it  i;3  exempt  from  levy  for  any  debt  except 
for  the  purchase-money,  taxes,  and  for  improvements  on  the 
homestead,  and  for  labor  done  and  materials  found  for  that 
purpose,  and  for  removal  of  incumbrances  thereon,*  but  is  not 
exempt  from  a  judgment  recovered  for  a  tort  committed.^ 
And  if  the  husband  becomes  bankrupt  and  is  declared  so 
before  homestead  is  set  out,  the  property  will  have  passed 
from  him,  so  that  it  would  be  too  late  to  claim  the  right.^ 

4.  In  Illinois,  it  cannot  be  set  up  against  a  claim  for  the 
purchase-money,  nor  taxes,  nor  for  the  expenses  of  imj^rove- 
ments  upon  the  premises.''  But  a  judgment  for  any  other 
cause  forms  no  lien  in  favor  of  a  creditor,  upon  a  debtor's 
homestead.^  Nor  is  it  a  fraud  to  buy  an  estate  as  a  home- 
stead, although  at  the  time  the  purchaser  is  insolvent,  and 
the  property  is  thereby  placed  beyond  the  reach  of  creditors.^ 
A  mortgage  of  a  homestead  estate,  if  made  to  secure  the  pur- 
chase-money, is  valid  Uiough  not  signed  by  the  wife.^^  If  a 
homestead  is  not  exempt  when  the  debt  is  contracted,  a  sub- 
sequent possession  of  it  as  a  homestead  would  not  exempt  it.^^ 
But  it  is  exempt  as  well  from  judgments  ex  delicto  as  ex  eon- 

1  Bartholomew  v.  Hook,  23  Cal.  278. 

2  McDonald  v.  Badger,  23  Cal.  400 ;  Gary  v.  Eastabrook,  6  Cal.  457. 

8  Const.  1868,  art.  9,  §  1.  *  Const.  1868,  art.  7,  §  1  j  19  Am.  Law  Keg.  5. 

5  Cobb's  Dig.  389,  390;  Davis  v.  Henson,  29  Ga.  345. 

6  Lumpkin  v.  Eason,  44  Ga.  339. 

7  Stat.  111.  650 ;  Phelps  v.  Conover,  25  111.  314  ;  Magee  v.  Magee,  51  111.  500; 
Tourville  c  Pierson,  39  111.  447  ;  Hubbe:  v.  Canady,  58  111.  427. 

8  Green  v.  Marks,  25  111.  221. 

9  Cipperly  v.  Rhodes,  53  111.  346.  lo  Tourville  v.  Pierson,  39  111.  447. 
W  Titman  v.  Moore,  43  LI.  169. 


396  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

tractu,^  and  from  fine  and  costs  in  criminal  prosecutions.^ 
The  same  rule  applies  to  a  sale  under  a  decree  of  a  court  of 
equity.  Hence  a  sale  under  a  mortgage  made  by  husband 
and  wife,  in  which  she  does  not  expressly  waive  her  home- 
stead right,  would  be  of  no  avail  against  her  claim  under  that 
right,  for  a  mortgagee  gets  no  right  as  against  such  a  claim 
unless  she  has  properly  released  it  in  the  deed.^  The  rule  as 
to  a  homestead  being  liable  for  purchase-money  seems  to  be 
this :  If  the  debt  is  for  money  loaned  to  pay  a  pre-existing 
debt  due  for  the  purchase-money,  the  homestead  would  not 
be  liable  for  it.  If  it  was  borrowed  at  the  time  of  the  pur- 
chase, with  which  to  pay  the  purchase-money,  it  would  be 
liable  ;  so  it  would  if  it  be  due  for  the  purchase  of  a  part  of 
the  premises  constituting  the  entire  homestead.*  If  a  debtor 
is  shown  to  be  a  householder,  and  in  occupancy  of  a  lot  of 
land  as  a  residence,  the  creditor  who  undertakes  to  claim  it 
by  a  levy  of  an  execution  or  under  a  mortgage,  must  show 
affirmatively  that  it  is  not  exempted  as  a  homestead.^  But  if 
the  debtor's  homestead  exceed  one  thousand  dollars  in  value, 
his  creditor  may  cause  the  same  to  be  sold,  reserving  for  the 
debtor  that  sum,  to  be  held  free  from  attachment  for  a  year, 
and  to  be  paid  to  the  debtor.^  If  a  homestead  estate  is  levied 
on  and  is  sold  for  more  than  one  thousand  dollars,  the  pur- 
chaser acquires  such  a  lien  as  to  entitle  him  to  the  estate 
whenever  the  homestead  right  ceases.''  So  if  the  owner  con- 
vey the  estate  out  of  which  a  homestead  has  been  claimed 
without  consent  of  his  wife,  and  still  retains  the  possession, 
the  grantee  gets  a  right  thereby  to  have  the  estate,  when  the 
right  of  homestead  ceases,  but  not  to  disturb  the  grantor  in 
his  possession.^     It  would  seem,  therefore,  that  a  homestead 

1  Conroy  v.  Sullivan,  44  111.  451 

2  Loomis  V.  Gerson,  62  111.  11. 

8  Wing  V.  Cropper,  35  III.  263 ;  Mooers  v.  Dixon,  35  HI.  221 ;  Ives  v.  Mills,  37 

HI.  78. 

*  Austin  V.  Underwood,  37  111.  438  ;  Eyster  v.  Hathaway,  50  111.  521 ;  Magee 
V.  Magee,  51  111.  500. 

6  White  V.  Clark,  36  111.  289 ;  Stevenson  v.  Marony,  29  III.  532. 

6  Walsh  V.  Horine,  36  111.  242. 

7  Blue  V.  Blue,  38  111.  18;  Tomlin  v.  Hilyard,  43  111.  302. 

8  McDonald  v.  Crandall,  43  lU.  231 ;  Coe  v.  Smith,  47  111.  226 ;  Hewitt  v. 
Templeton,  48  DI.  369 ;  Finley  v.  McConneU,  60  111.  263. 


CH.  TX.  §  2.]  ESTATES   BY   MARRIAGE.  397 

right  was  of  the  nature  of  a  particular  estate,  with  a  right  of 
reversion  in  the  owner  which  might  be  reached  by  levy  or  a 
grant  from  the  owner.  But  it  was  held  that  if  the  homestead 
did  not  exceed  in  value  the  amount  exempted  by  law,  a  levy 
upon  the  estate  and  sale  thereof  would  be  void.^  In  the 
United  States  court,  however,  it  was  decided  that  a  levy  and 
sale  of  the  fee  of  a  debtor's  estate  passed  it  to  the  purchaser 
subject  to  the  homestead  right,  and  when  that  expired  the 
purchaser's  title  became  absolute.^ 

5.  In  Indiana,  it  cannot  be  set  up  against  a  process  under 
a  mechanic's  lien,  or  the  recovery  of  the  jiurchase-money,  nor 
a  judgment  for  a  tort.^  And  if,  when  an  officer  levies  an 
execution  upon  a  debtor's  premises,  he  do  not  set  up  his  right 
of  homestead  therein,  he  will  be  considered  as  having  waived 
it,  and  the  levy  will  be  established.* 

6.  In  Iowa,  not  onh^  is  the  homestead  liable  for  taxes  and 
mechanic's  lien,  and  for  debts  contracted  before  the  purchase 
of  the  estate,  but  also  all  debts  contracted  out  of  the  State, 
and  due  to  persons  now  resident  in  it,  and  also  all  debts  to 
which  it  is  made  subject  by  the  debtor  when  he  contracts 
them.^  And  if  a  creditor  obtains  a  judgment  against  a  debtor, 
it  becomes  a  lien  upon  the  land,  which  is  not  defeated  by  the 
debtor's  having  a  homestead  afterwards  set  out  before  a  levy 
has  been  made.^  Such  would  be  the  case  if  a  creditor  were 
to  obtain  a  judgment  before  the  debtor  had  begun  to  occupy 
the  homestead  set  off  to  him,  and  he  may  afterwards  make  a 
levy  upon  the  estate.'^  A  judgment  attaches  a  lien  to  the 
homestead  of  a  debtor  the  moment  it  ceases  to  be  used  as 
such,  though  not  as  against  a  purchaser  to  whom  he  conveys 
it  while  the  right  continues.^  And  if  he  die  without  leaving 
widow  or  children,  his  homestead  may  be  sold  to  i^ay  his 
debts.^     The  exemption  cannot  be  set  up  against  a  vendor's 

^  Wiggins  V.  Chance,  54  111.  175. 

2  Black  V.  Curran,  14  Wall.  463;  and  see  McDonald  v.  Crandall,  43  111.  231. 

8  2  Ind.  Stat.  367  j  State  v.  Melogue,  9  Ind.  196. 

*  State  V.  Melogue,  sup. ;  Sullivan  v.  Winslow  22  Ind-  154. 

*  Code,  197  ;  Babcock  v.  Hoey,  11  Iowa,  876  ;  Laing  v.  Cunningham,  17  Iowa, 
513;  Code  of  1873,  Tit.  18,  c.  2,  §  3072. 

6  Elston  V.  Robinson,  21  Iowa,  531.  "^  Elston  v.  Robinson,  23  Iowa,  208. 

8  Lamb  v.  Shays,  14  Iowa,  570. 

*  Floyd  V.  Mosier,  1  Iowa,  513;  Rhodes  v.  McCormick,  4  Iowa,  871. 


398  LAW   OF   REAL    PROPERTY.  [BOOK   I. 

claim  for  his  purchase-money.^  And  being  a  matter  of  rem- 
edy, it  is  governed  by  the  lex  fori,  so  that  if  a  debt  be  con- 
tracted in  a  State  where  there  is  no  homestead  exemption,  it 
is  not  entitled  to  any  precedence  in  that  respect,  if  sued  in 
Iowa,  over  debts  contracted  there.^ 

6  a.  In  Kansas,  the  exemption  does  not  avail  against  claims 
for  taxes,  the  purchase-money  of  the  estate,  or  improvements 
made  upon  the  same.^  A  judgment  or  levy  creates  no  lien 
if  made  upon  the  homestead,  either  upon  the  present  interest 
of  homestead  or  upon  the  estate  which  remains  after  the 
homestead  shall  have  ceased.^  There  is  the  same  exception 
from  exemption  from  levy  and  forced  sale  for  taxes  and  pur- 
chase-money in  Louisiana  as  in  Kansas.^  And  a  mortgage 
made  before  the  law  of  homestead  was  passed  was  not  affected 
by  it.6 

7.  In  Maine,  the  exemption  is  no  bar  to  a  mechanic's  lien, 
nor  a  claim  for  damages  by  flowing  the  lands  of  another,'  nor 
a  judgment  for  a  debt  contracted  before  a  certificate  of  home- 
stead recorded,  nor  a  judgment  for  costs  prior  thereto.^ 

8.  In  Massachusetts,  a  homestead  is  not  exempt  from  sales 
for  taxes,  nor  from  the  vendor's  claim  for  his  purchase-money, 
nor  from  debts  due  before  the  right  shall  have  accrued,  includ- 
ing mono}'  loaned  to  pay  the  purchase-money  at  the  time  of 
the  purchase ;  ^  nor  from  the  payment  of  ground  rent,  if  the 
buildings  claimed  under  such  homestead  right  stand  upon  the 
land  of  another  person.  With  these  exceptions,  no  such 
homestead  is  liable  to  attachment  or  levy  upon  execution  for 
the  owner's  debts.  Nor  does  the  right  affect  existing  mort- 
gages, liens,  or  incumbrances.  If  the  debtor's  estate  exceeds 
the  amount  of  the  exemption,  the  appraisers  who  set  off  his 
estate  on  execution  may  set  off  all  over  that  value ;  and  if  it 
be  under  mortgage,  the  officer  may  sell  the  same,  subject  to 

1  Barnes  v.  Gay,  7  Iowa,  26  ;  Christy  v.  Dyer,  14  Iowa,  442 ;  Cole  v.  Gill,  14 
Iowa,  530. 

2  Helfenstein  v.  Cave,  3  Iowa,  289. 

8  Morris  v.  Ward,  5  Kan.  244.  *  Morris  v.  Ward,  sup. 

5  Rev.  Stat.  1870,  §  691. 

6  Roup  V.  Carradine,  20  La.  Ann.  244.  ^  Rev.  Stat.  c.  81,  §  41 

8  Mills  V.  Spaulding,  50  Me.  60. 

9  Stevens  v.  Stevens,  10  Allen,  146 ;  N.  E.  Jewelry  Co.  v.  Meriara,  2  Allen,  390. 


CH.  IX.  §  2.]  ESTATES   BY   MAERIAGE.  399 

the  mortgage  and  homestead.  Upon  the  same  principle,  at 
the  death  of  the  debtor,  all  his  estate  over  and  above  his 
homestead  may  be  sold  for  the  payment  of  his  debts.^  This 
right  would  not  be  lost  if,  having  established  it,  the  debtor 
should  convey  the  estate  to  a  stranger,  who  should  convey  it 
to  the  debtor's  wife  with  an  intent  to  defraud  his  creditors.^ 
But  whatever  reversionary  interest  belongs  to  the  debtor  after 
satisfying  the  homestead  claim,  may  be  levied  on  by  his  cred- 
itors, and  will,  if  insolvent,  pass  to  his  assignees.^  In  levying 
an  execution  upon  an  estate  in  which  the  debtor  holds  a 
homestead  right,  the  appraisers  are  to  set  off  the  value  of 
eight  hundred  dollars  by  itself,  and  then  levy  upon  the  re- 
mainder.* A  writ  of  entry  may  be  brought  against  a  woman, 
and  judgment  rendered  in  respect  to  an  estate  claimed  by  her 
as  a  homestead,  which  will  be  effectual  as  to  all  purposes  ex- 
cept such  homestead  right.^  The  surplus  or  reversionary 
interest  of  the  husband,  subject  to  the  homestead  right  of  his 
wife  and  children,  may  be  levied  on  by  his  creditors  for  his 
debts  ;  but  a  levy  upon  the  homestead,  even  by  consent  of 
the  wife,  would  be  void.^  The  request  or  assent  of  a  wife  to 
a  sale  on  execution  does  not  give  validity  to  the  sale,  inas- 
much as  the  protection  from  levy  is  as  much  in  favor  of  the 
husband  as  the  wife.'^  A  mortgage  by  the  husband  will  carry 
his  reversionary  right,  though  his  wife  do  not  join  in  the 
deed.^ 

9.  In  Michigan,  homesteads  are  exempt  from  forced  sale 
for  any  debt.  But  this  may  be  waived  by  the  debtor  if  un- 
married ;  but,  if  married,  it  can  only  be  done  by  the  action  of 
the  husband  and  wife.^  If  what  is  claimed  as  a  homestead 
be  of  greater  value  than  the  amount  exempted  by  law,  a 
creditor  may  levy  upon  the  surplus,  and,  in  ascertaining  this 
value,  reference  is  had  to  the  time  of  the  levy,  and  not  to  any 

1  Gen.  Stat.  c.  104 ;  Ptat.  1858,  c.  62.  '^  Castle  v.  Palmer,  G  Allen,  404. 

3  Smith  V.  Provin,  4  Allen,  516  ;  White  u.  Rice,  5  Allen,  76;  Doyle  v.  Cobum, 
6  Allen,  71 ;  Woods  v.  Sanford,  9  Gray,  16. 
*  Gen.  Stat.  c.  104,  §  11. 

5  Stebbins  v.  Miller,  12  Allen,  597.  «  Silloway  v.  Brown,  12  Allen,  32. 

^  Castle  V.  Palmer,  6  Allen,  404. 

8  Burns  v.  Lynde,  6  Allen,  312;  Silloway  v.  Brown,  12  Allen,  32. 
«  Const,  art.  16  ;  Beecher  v.  Baldy,  7  Mich.  488. 


400  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

former  estimated  value. ^  But  in  order  to  authorize  a  creditor 
to  do  this,  he  must  be  able  to  show  that  the  homestead  ex- 
ceeded tins  value,  and  that  it  was  not  suscei^tible  of  division, 
so  as  to  leave  a  sej)arate  homestead  of  the  prescribed  value 
for  the  debtor.^ 

10.  In  Minnesota  there  is  an  exception  in  the  matter  of 
homestead  exemption,  as  to  any  indebtedness  not  connected 
w'ith  the  land  itself,  or  improvements  uj)on  it,  including  liens 
for  purchase-money,  labor  and  materials  of  workmen,  and 
taxes.  And  any  judgment  becomes  a  lien  upon  the  land,  so 
that  the  moment  the  premises  cease  to  be  occupied  as  a  home- 
stead, it  may  be  enforced  by  sale.  The  owner,  however,  may 
convey  the  estate,  or  tem|Dorarily  abandon  it,  without  subject- 
ing it  to  the  creditor's  process.^  If  husband  and  wife  fraudu- 
lently convey  land  to  another  who  conveys  the  sa,me  to  the 
wife,  the  husband  cannot,  as  tenant  by  curtesy,  set  up  a 
homestead  right  gained  thereby  by  her,* 

1,0  a.  In  Mississippi,  homestead  exemption  does  not  avail 
against  a  claim  for  the  purchase-money  of  the  estate.^  But 
the  exemption  in  Missouri  is  complete  as  to  all  liabilities  of 
the  debtor.*^ 

11.  In  New  Hampshire,  there  is  a  like  exception  to  exemp- 
tion of  vendor's  and  mechanic's  liens,  and  taxes  and  debts  of 
less  than  one  hundred  dollars  due  for  labor  And  by  labor  is 
meant  what  is  popularly  understood  by  the  term,  and  does 
not  include  services  of  a  physician.  Nor  would  it  make  any 
difference  that  husband  and  wife  gave  the  creditor  a  note 
for  the  same.  Other  than  this,  the  homestead  is  not  assets  for 
the  payment  of  debts,  except  such  as  are  contracted  before 
the  homestead  is  set  out.  But  the  right  does  not  attach  to 
property  fraudulently  acquired  by  one,  he  being  in  insolvent 
circumstances.  No  devise  affects  it  while  it  is  occupied  by 
the  widow  or  minor  children.  If  the  estate  exceed  in  value 
the  amount  of  the  homestead  exemption,  and  is  not  suscep- 

1  Herschfeldt  v.  George,  6  Mich.  468.  2  Beecher  v.  Baldy,  7  Mich.  488. 

3  Eev.  Stat.  363  ;  Folsom  v.  Carii,  5  Minn.  337 ;  Tillotson  v.  Millard,  7  Minn.  520 ; 
Piper  V.  Johnston,  12  Minn.  60 ;  Stat,  at  Large,  1873,  c.  32,  Tit.  5 ;  Tuttle  v. 
Howe,  14  Minn.  145. 

*  Piper  V.  Johnston,  12  Minn.  60.  *  Buckingham  u.  Nelson,  42  Miss.  417. 

6  Geu.  Stat.  1865,  c.  111. 


CH.  IX.  §  2.]  ESTATES   BY   MAREIAGE.  401 

tible  of  division,  appraisers  estimate  its  entire  value,  and 
the  debtor  may  save  it  from  levy  and  sale  if  lie  will  pay  the 
excess  over  and  above  the  value  of  the  homestead.  If  he  neglect 
to  do  this,  the  sheriff  may  sell  the  whole,  paying  to  the  debtor 
the  value  of  such  homestead,  if  his  wife  consents,  otherwise 
into  some  institution  for  savings  to  the  credit  of  the  husband 
and  wife,  and  the  surplus  he  may  apply  upon  the  execution. ^ 
But  a  homestead,  when  set  out,  is  exempt  from  a  levy  of  any 
kind.  This  is  true  also  of  the  reversion  of  the  owner,  subject 
to  the  homestead  estate,  and  of  an  equity  of  redemption  of 
the  homestead  estate.  Otherwise  the  debtor  could  not  sell, 
mortgage,  or  exchange  the  homestead  estate,  because  the  levy 
■would  take  effect  the  moment  the  debtor  ceased  to  occupy 
the  premises.^ 

11  a.  In  Nebraska,  the  exemption  does  not  extend  to  taxes, 
mechanic's  wages,  or  money  due  from  an  attorney  collected 
by  him.^  In  Nevada,  it  does  not  extend  to  vendor's  or  me- 
chanic's liens.*  In  North  Carolina,  the  exemption  is  as  to 
"any  debt."^  But  it  does  not  extend  to  a  judgment  recov- 
ered in  an  action  of  tort.^ 

12.  In  New  York,  exemption  does  not  affect  taxes,  debts 
for  purchase-money,  or  such  as  were  contracted  before  notice 
given  of  the  homestead  having  been  set  out.  And  a  judg- 
ment so  far  forms  a  lien  upon  the  premises,  that,  though  they 
cannot  be  sold  upon  it  so  long  as  the  debtor  retains  a  home- 
stead right  therein,  the  moment  he  conveys  the  estate  to  a 
stranger  the  creditor  may  levy  thereon,  and  his  lien  will  take 
precedence  of  this  conveyance.'^  And  even  this  qualified  ex- 
emption does  not  extend  to  judgments  for  torts,  or  costs  of 
suit  recovered  by  a  defendant,  nor  for  any  other  wrongs  than 
the  non-payment  of  debts.^  But  the  assertion  by  the  debtor, 
when  he  contracted  the  debt,  that  his  estate  was  subject  to 

1  Comp.  Stat.  c.  196  ;  Norris  v.  Moulton,  34  N.  H.  392 ;  Weymouth  v.  Sanborn, 
43N.  H.   171. 

2  Tucker  v.  Kenniston,  47  N.  H.  267.  8  Qen.  Stat.  1873,  p.  616. 

4  Comp.  Laws,  1873,  §  186 ;  Const,  art.  4,  §  30 ;  Hopper  v.  Parkinson,  5 
Nev.  233. 

5  Const,  art.  10,  §  1.  6  Bellinger  v.  Tweed,  66  N.  C.  206. 

7  3  Stat.  647  ;  Smith  v.  Brackett,  36  Barb.  573 ;  Allen  v.  Cook,  26  Barb.  374. 

8  Lathrop  v.  Singer,  39  Barb.  396  ;  Schouton  v.  Kilmer,  8  How.  Pr.  527 ;  Robin- 
eon  V.  Wiley,  15  N.  Y.  493, 

VOL.  I.  26 


402  LAW   OP   REAL   PROPERTY.  [bOOK   I. 

execution,  provided  the  homestead  had  been  duly  recorded 
as  such,  would  not  affect  the  debtor's  right  to  set  up  the 
same,  since  the  statute,  being  founded  upon  public  policy, 
is  not  to  be  defeated  by  the  representation  of  a  party. ^ 

13.  In  Ohio,  the  exemption  is  not  against  mechanic's  liens 
nor  taxes.  And  if  an  officer  holding  an  execution  undertakes 
to  levy  it  upon  the  debtor's  land,  who  sets  up  the  claim  of 
homestead  exemption,  he  must  have  this  set  off  by  appraisers 
by  metes  and  bounds,  if  susceptible  of  division,  and  may  levy 
upon  the  surplus  of  the  estate.  If  it  is  not  divisible,  the 
officer  may  levy  upon  the  whole  estate,  and  have  the  rents  and 
profits  over  forty  dollars  a  year  set  off  to  the  creditor  till  the 
debt  is  paid  .2 

14.  In  Pennsj'lvania,  liens  for  purchase-money,  mechanic's 
liens,  and  judgments  recovered  for  any  cause  of  action  other 
than  contracts,  or  for  breaches  of  official  duty,  are  not  affected 
by  homestead  exemption  rights.  And  such  would  be  the  case 
if,  when  the  contract  was  made,  or  the  judgment  was  ren- 
dered thereon,  the  owner  of  the  homestead  waived  this  right.^ 
Nor  can  a  debtor  who  has  fraudulently  conveyed  his  estate  to 
defeat  his  creditors,  set  up  a  homestead  claim  against  one  of 
them  who  shall  levy  upon  the  same.^  If  a  judgment  be 
recovered  for  the  purchase-money,  it  may  be  levied  on  the 
homestead,  although  the  debtor  may  have  become  and  been 
declared  a  bankrupt,  because  the  bankrupt  law  does  not  reach 
a  debtor's  homestead,  but  exempts  it.^ 

15.  In  South  Carolina,  it  is  understood  that  a  debtor  waives 
his  right  to  set  up  a  homestead  exemption,  if  he  neglects  to 
do  so  when  the  officer  makes  a  levy  upon  his  estate.^  And 
the  statute  does  not  exempt  the  estate  from  claims  for  taxes 
or  for  the  purchase-money.'^  Nor  does  it  avail  against  a  mort- 
gage made  before  the  adoption  of  the  constitution.^ 

16.  In  Texas,  a  "  forced  sale "  means  one  made  under 
process  of  court,  in  a  manner  prescribed  by  law.^     And  a 

1  Robinson  v.  Wiley,  sup. ;  s.  c.  19  Barb.  157.  2  Rev.  Stat.  1154. 

3  Purd.  Dig.  9th  ed.  281 ;  Lauck's  Appeal,  24  Penn.  426 ;  Bowman  v.  Smiley, 
31  Penn.  225  ;  Kirkpatrick  v.  White,  29  Penn.  179. 

4  Huey's  Appeal,  29  Penn.  220.  ^  Pehlcy  v.  Barr,  66  Penn.  St.  196. 
6  Manning  v.  Dove,  10  Rich.  403.  1  Rev.  Stat.  1873. 

8  Shelor  v  Mason,  2  S.  C.  233.  9  Sampson  v.  Williamson,  6  Tex.  110. 


CH.  IX.  §  2.]  ESTATES   BY   MAEEIAGE.  403 

debtor's  property  is  liable  to  be  sold,  in  this  way,  for  the 
satisfaction  of  any  lien  created  thereon  before  the  same  is 
declared  a  homestead. ^  But  it  makes  no  difference  whether 
the  debt  is  incurred  before  or  after  such  declaration  of  home- 
stead.2  The  exemption  does  not  extend  to  a  claim  for  pur- 
chase-money.^ And  if  a  debtor  acquire  a  new  homestead,  his 
former  one  becomes  liable  to  be  levied  upon  for  his  debts.'* 
If  a  debtor  abandons  his  homestead,  he  subjects  it  to  levy, 
and  the  abandonment,  in  order  to  have  that  effect,  must  be 
■with  an  intent  not  to  come  back  and  claim  the  exemption.^ 
With  these  exceptions,  the  homestead  right  is  above  all  liens 
and  claims  for  the  satisfaction  of  debts,  and  cannot  be  sold 
upon  any  judgment  or  legal  process.  Such  sale,  if  made, 
would  be  void.^ 

17.  In  Vermont,  a  homestead  is  liable  to  levy  for  a  debt 
or  cause  of  action  accruing  previous  to  the  purchase  of  the 
estate  ;  and  if  one  acquire  a  new  homestead,  the  former  one 
becomes  liable  to  be  levied  on,  as  if  it  had  never  been  exempt.'^ 
After  the  death  of  the  debtor,  his  estate  is  not  subject  to  sale 
for  his  debts,  unless  the  debt  is  made  specially  chargeable 
thereon,  or  it  be  for  taxes.^  If  a  debtor  convey  his  estate, 
there  is  nothing  left  which  can  be  reached  hj  a  creditor,  al- 
though his  wife  do  not  join  in  the  conveyance,  even  though 
the  debt  of  the  creditor  was  contracted  before  the  purchase 
by  the  debtor  of  his  homestead,  nor  though,  if  his  wife  sur- 
vive him,  she  may  defeat  such  sale  as  being  void,  unless  he 
shall  in  the  mean  time  have  acquired  a  new  homestead.^  And 
where  a  debtor  mortgaged  his  estate,  "  saving  always  the 
homestead  exemption,"  it  was  held  that  this  related  only  to 
the  wife's  contingent  right,  and  did  not  open  it  to  be  levied 
upon  by  a  creditor  for  a  debt  due  before  the  debtor's  purchase 

1  Farmer  v.  Simpson,  6  Tex.  310. 

2  North  V.  Shearn,  15  Tex.  176. 

8  Stone  V.  Darnell,  20  Tex.  14  ;  McCrary  v.  Fortson,  35  Tex.  641. 
*  Stewart  y.  Mackey,  16  Tex.  58 ;  Berlin  v.  Burns,  17  Tex.  537. 
6  Gouhenant  v.  Cockrell,  20  Tex.  96.  6  stone  v.  Darnell,  20  Tex.  14. 

^  Comp.  Stat.  390,  391 ;  Howe  v.  Adams,  28  Vt.  544 ;  Jewett  v.  Brock,  32 
Vt.  65. 

8  Comp.  Stat.  sup. 

9  Howe  V.  Adams,  sup. ;  Davis  v.  Andrews,  30  Vt.  678 ;  Jewett  v.  Brock,  32 
Vt.  65. 


404  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

of  his  estate.^  If  a  householder  acquire  a  second  homestead, 
the  jBrst  at  once  becomes  Hable  for  his  debts.^  A  homestead 
is  liable  for  any  debt  or  cause  of  action  arising  or  contracted 
before  the  estate  is  purchased  and  the  deed  recorded.  But  if 
the  cause  of  action  accrue  after  the  purchase  and  the  record 
of  the  deed,  the  homestead  will  not  be  liable  for  it,  unless  an 
action  upon  it  is  commenced,  and  the  estate  is  attached  before 
the  debtor  enters  into  possession  of  the  same,  and  there  is  a 
query  whether  it  would  then  be  liable.^ 

17  a.  In  Virginia,  the  homestead  exemption  extends  to  "  any 
demand  for  any  debt  heretofore  or  hereafter  contracted."  Biit 
it  does  not  extend  to  the  purchase  price  of  the  property,  ser- 
vices rendered  by  a  laborer  or  a  mechanic,  liabilities  incurred 
by  a  public  officer,  officer  of  court,  a  fiduciary,  or  attorney  for 
money  collected,  taxes,  rent,  and  legal  or  taxable  fees  of  a 
public  officer  or  officer  of  a  court.  Nor  does  it  interfere  with 
the  sale  of  the  estate  by  virtue  of  any  mortgage,  deed  of  trust, 
pledge,  or  other  security.'*  And  if  in  making  a  contract  the 
debtor  expressly  waive  the  right  of  homestead  exemption,  it 
will  be  liable  to  levy  for  such  debt.^ 

18.  In  Wisconsin,  the  exemption  extends  to  judgments  in 
actions  for  torts,  and  no  lien  attaches  to  the  homestead  in 
favor  of  a  judgment  creditor,  though  the  debtor  sell  his  estate 
or  remove  from  the  homestead.^  A  levy  and  sale  of  a  home- 
stead, without  first  having  it  surveyed,  and  then  selling  the 
excess  above  the  homestead  value,  is  void.'^  This  exemption 
continues  after  the  debtor's  death,  if  he  have  any  surviving  in- 
fant children.  And  if  an  officer,  holding  an  execution  against 
a  debtor,  is  dissatisfied  with  the  estimated  value  of  the  home- 
tead,  he  may  have  it  survej^ed  and  set  off  to  him.^  But  where 
a  mortgage  covered  the  homestead  and  other  lands,  and  a  cred- 
itor had  a  judgment  lien  upon  the  other  lands,  the  court  refused 

1  Jewett  V.  Brock,  sup.  2  gtat.  1862,  Append.  70. 

8  West  River  Bank  v.  Gale,  42  Vt.  27 ;  Lamb  v.  Mason,  45  Vt.  502. 

4  Const.  1868,  art.  11,  §  1 ;  19  Ana.  Law  Reg.  16. 

5  Code,  1873. 

6  Stat.  1858,  c.  137 ;  Upman  v.  Second  Ward  Bank,  15  Wis.  449,  overruling 
Hoyt  V.  Howe,  3  Wis.  752 ;  Simmons  v.  Johnson,  14  Wis.  523 ;  Smitli  v.  Omans, 
17  Wis.  395. 

T  Myers  v.  Ford,  22  Wis.  141.  8  stat.  c.  134,  §  23. 


CH.  IX.  §  2.j  ESTATES    BY    MARRIAGE.  405 

to  interfere  to  comiDel  the  mortgagee  to  first  apply  the  other 
lands,  in  order  to  protect  the  debtor's  homestead.^  Homestead 
exemption  does  not  extend  to  laborer's  and  mechanic's  liens 
on  the  land.2 


DIVISION  VI. 

HOW  FAR   HOMESTEAD  RIGHTS  PREVENT  ALIENATION. 

1.  Reasons  for  exempting  homesteads  from  sale. 

2.  Alienation  of  homestead,  how  limited  in  California. 

3.  How  hmited  in  Georgia. 

4.  How  limited  in  Illinois. 

5.  How  limited  in  Indiana. 

6,  6a.  How  limited  in  Iowa,  Kansas,  and  Kentucky. 

7.  How  limited  in  Massachusetts. 

8.  How  limited  in  Michigan. 

9,  9a.  How  limited  in  Minnesota,  Mississippi,  Nebraska,  and  Nevada. 

10.  How  limited  in  New  Hampshire. 

11.  How  limited  in  New  York. 

12.  How  limited  in  Ohio. 

13.  How  limited  in  Texas. 

14.  How  limited  in  Vermont. 
16.  How  limited  in  Wisconsin. 

1.  This  homestead  estate  is,  nevertheless,  the  subject  of  sale, 
mortgage,  release,  and,  in  some  States,  of  being  lost  by  aban- 
donment. How  and  by  whom  this  may  be  done  depends  upon 
the  law  of  the  particular  State  in  which  the  premises  are  sit- 
uate. From  the  circumstance,  however,  that  the  purposes  of 
the  exemption  have  reference  more  especially  to  the  debtor's 
family  than  himself,  in  many  of  the  States  the  owner  is  dis- 
abled from  conveying  the  premises  so  as  to  affect  the  home- 
stead right,  unless  his  wife  joins  in  the  conveyance.  The 
subject  divides  itself  into  the  mode  in  which  a  conveyance 
may  be  made,  and  how  the  right  of  homestead  may  be  lost  or 
abandoned. 

1  a.  In  Alabama,  no  mortgage  or  alienation  of  the  homestead 

1  White  V.  Polleys,  20  Wis.  506. 

2  Stat.  1858,  c.  124,  §  23;   Stat.  1873. 


406  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

estate  is  valid  when  made  by  the  owner,  if  a  married  man, 
without  the  voluntary  signature  and  assent  of  the  wife.^ 

In  California,  a  mortgage  or  alienation  of  any  kind,  in 
order  to  be  valid,  if  the  owner  is  married,  must  be  by  a  joint 
deed  of  the  husband  and  wife,  unless  it  be  given  to  secure  the 
purchase-money  of  the  estate,  and  the  deed  must  be  acknowl- 
edged as  well  as  signed  by  the  wife.  It  must  be  the  concur- 
rent act  of  the  two  done  in  conformity  with  the  law,  A 
separate  deed  by  each,  though  of  the  same  estate,  will  not 
have  the  effect.^  A  deed  of  a  homestead  by  husband  alone 
gives  the  grantee  no  right  of  entry,  so  long  as  the  grantor 
continues  to  occupy  the  premises  as  a  homestead.  He  is 
neither  tenant  at  will  nor  tenant  by  agreement  of  his  grantee.^ 
The  statute  of  1862  authorizes  a  mortgage  of  a  homestead  for 
any  purpose,  if  it  is  signed  by  the  wife  of  the  owner  and 
acknowledged  by  her.*  But  it  would  have  the  effect  to  defeat 
the  homestead  right,  if  their  deed  convey  an  undivided  share 
of  the  estate.^  And  a  deed  by  the  husband  alone  would  be 
effectual  to  pass  all  of  the  estate  occuj)ied  as  a  homestead, 
which  should  exceed  the  amount  of  the  legal  exemption.^  So 
a  mortgage  by  him  alone  would  have  been  good  before  1860 
to  secure  the  purchase-money,  whether  made  directly  to  the 
vendor,  or  to  one  who  loaned  to  the  debtor  the  money  with 
which  he  paid  the  purchase-money,  it  being  a  part  of  the 
transaction  of  i^urchasing  and  paying  for  the  land.'^  A  deed 
of  the  homestead  made  by  a  husband  alone  is  simply  void.^ 
By  the  act  of  1860,  when  a  homestead  has  once  been  declared 
and  recorded,  no  mortgage  or  alienation  of  the  same  can  be 
made  for  any  purpose,  unless  it  be  to  secure  the  pa,yment  of 
the  purchase-money,  and  then  only  by  being  signed  by  the 

1  Const.  1868,  art.  14,  §  2;  19  Am.  Law  Eeg.  2. 

2  Wood's  Dig.  483,  484 ;  Poole  v.  Gerrard,  6  Cal.  71 ;  Taylor  v.  Hargous,  4  Cal. 
273 ;  Dunn  v.  Tozer,  10  Cal.  172 ;  Dorsey  v.  McFarland,  7  Cal.  842 ;  Estate  of 
Tompkins,  12  Cal.  125;  Lies  v.  De  Diablar,  12  Cal.  327  ;  Stat,  1868,  p.  116. 

3  Brooks  V.  Hyde,  37  Cal.  366.  *  Peterson  v.  Hornblower,  33  Cal.  266. 

5  Kellersberger  v.  Kopp,  6  Cal.  565. 

6  Sargeant  v.  Wilson,  5  Cal.  506 ;  Moss  v.  Warner,  10  Cal.  206. 

7  Montgomery  v.  Tutt,  11  Cal  193;  Skinner  v.  Beatty,  16  Cal.  156;  Lassen 
V.  Vance,  8  Cal.  274 ;    Carr  v.  Caldwell,  10  Cal.  380. 

8  Lies  V.  De  Diablar,  12  Cal.  329,  330;  Bowman  v.  Norton,  16  Cal.  218;  Swift 
V.  Kraemer,  13  Cal.  526 ;  Peterson  v.  Hornblower,  33  Cal.  266. 


CH.  IX.  §  2.]  ESTATES    BY    MARRIAGE.  407 

husband  and  wife  and  acknowledged  by  her.^  But  if  the  hus- 
band survive  the  wife,  he  may  convey  the  estate  by  a  separate 
deed.  If  he  make  a  mortgtige  and  then  abandon  his  home- 
stead, as  he  may  do,  the  mortgage  becomes  a  vahd  incum- 
brance.2  But  as  the  law  stood  before,  the  debtor  might  have 
mortgaged  the  estate  subject  to  the  homestead  right.^  Thus, 
Vhere  the  debtor  made  a  mortgage  to  secure  a  part  of  the 
purchase-money,  and  then  made  a  new  mortgage  to  secure 
this  and  a  new  loan,  it  was  held  that  so  far  as  the  second  loan 
was  concerned  the  mortgage  was  void.*  So  where  husband 
made  a  mortgage  alone,  and  then  made  a  second  one  in  which 
his  wife  joined,  and  the  first  mortgagee  foreclosed  his  mort- 
gage without  giving  notice  to  the  second  mortgagee,  it  was 
held  void  as  against  the  second  mortgagee.^  But  it  seems  that 
not  only  must  the  debtor  have  a  wife,  in  order  to  affect  his 
right  to  convey  his  homestead,  but  she  must  have  shared 
with  him  in  occupying  the  same,  in  order  to  attach  the  char- 
acter of  homestead  to  the  premises.  Thus  where  a  man 
came  from  another  State  without  his  wife,  and  purchased 
lands,  but,  before  she  removed  into  the  State,  mortgaged  them, 
it  was  held  that  the  mortgage  was  good,  and  that  until  she 
came  and  occupied  the  premises  with  him,  it  did  not  acquire 
the  incidents  of  homestead.^  And  after  the  wife's  death,  the 
husband  may  mortgage  the  premises,  though  he  have  children 
living.'' 

3.  In  Georgia,  the  husband  cannot  sell  the  homestead  with- 
out consent  of  the  wife,  nor  defeat  her  right  therein  by 
removing  from  the  same.^  But  it  may  be  aliened  by  the  joint 
act  of  the  husband  and  wife,  done  with  the  approbation  of 
the  ordinary.^ 

1  Cohen  v.  Davis,  20  Cal.  187 ;  Bowman  v.  Norton,  16  Cal.  217 ;  McHendry 
V.  Reilly,  13  Cal.  75. 

2  Himmelmann  v,  Schmidt,  23  Cal.  120. 

3  Gee  V.  Moore,  14  Cal.  472 ;  Bowman  v.  Norton,  16  Cal.  217. 

4  Dillon  V.  Byrne,  5  Cal.  456. 

6  Dorsey  v.  McFarland,  7  Cal.  342 ;  Van  Reynegan  v.  Eevalk,  8  Cal.  75 ; 
Kraemer,  v.  Revalk,  8  Cal.  74. 

6  Cary  v.  Tice,  6  Cal.  630;  Benedict  v.  Bunnell,  7  Cal.  246. 

'  Benson  v.  Aitken,  17  Cal.  163.  8  Dearing  v.  Thomas,  25  Ga.  224 

9  Burnside  v.  Terry,  45  Ga.  629. 


408  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

4.  In  Illinois,  no  alienation  of  the  premises,  nor  mortgage, 
nor  release  or  waiver  of  homestead  therein,  affects  the  home- 
stead right,  unless  it  be  by  the  same  mode  in  which  convey- 
ances of  real  estate  are  made,  and  is  signed  by  the  wife  of  the 
householder,  and  is  acknowledged  by  her,  and  this  condition 
precedent  applies  to  mortgages  and  deeds  of  trust,  as  well  as 
other  alienations.^  The  deed,  moreover,  must  contain  an  ex- 
press release  or  waiver  of  the  homestead  right.  A  general 
form  of  grant  would  not  be  sufficient,^  and  the  wife  must  also 
acknowledge  that  she  thereby  releases  her  right  of  homestead.^ 
A  deed  with  general  covenants  of  warranty  would  not  be 
sufficient,  unless  there  was  in  the  deed  an  express  reference 
to  the  right  of  homestead.*  A  husband  cannot  sell  his  home- 
stead estate  so  long  as  he  occupies  it  as  the  head  of  a  family. 
But  he  may  abandon  it  as  a  residence,  and  then  be  at  liberty 
to  sell  and  convey  it.^  If  a  husband  alone  convey  his  home- 
stead, he  may  set  up  this  right  against  his  own  grantee  in  an 
action  of  ejectment  to  recover  it.^  But  a  mortgage  by  a 
husband  alone  will  create  a  lien  upon  whatever  he  has  m 
excess  above  the  value  of  the  homestead  which  is  exempted 
by  law.'^  But  if  the  husband  convey  the  estate,  though  with 
an  intent  to  defraud  his  creditors,  he  could  not  himself  claim 
the  benefit  of  homestead  therein.^  Nor  would  the  giving  to 
premises  the  character  of  homestead  affect  an  existing  mort- 
gage thereon.^  And  if  the  deed  of  mortgage  embrace  prem- 
ises of  greater  value  than  is  exempted  by  law,  it  would  be 
good  as  to  such  excess,  although  the  wife  do  not  join  in  the 

1  Stat.  650;  Stat.  18.57;  Kitchell  v.  Burgwin,  21  111.  44;  Vanzant  v.  Vanzant, 
23  111.  540;  Pattersons.  Kreig,  29  111.  514;  Best  v.  Allen,  30  lU.  30;  Smith  v. 
Miller,  31  III.  161 ;  Boyd  v.  Cudderback,  31  111.  117  ;  Thornton  v.  Boyden,  31 
111.  211 ;  Connor  v.  Nichols,  31  III.  153 ;  Pardee  v.  Lindley,  31  111.  186 ;  Brown  v. 
Coon,  36  111.  247 ;  Stat.  1869,  c.  48  a,  327 ;  1873,  p.  226. 

2  Kitchell  V.  Burgwin,  sup.;  Vanzant  v.  Vanzant,  sup.;  Miller  v.  Marckle,  27 
111.  405 ;  Moore  v.  Titman,  33  111.  368 ;  Redfern  v.  Redfern,  38  111.  512 ;  Cipperby 
V.  Rhodes,  53  111.  351 ;  Hatchings  v.  Huggins,  59  111.  29. 

8  Boyd  V.  Cudderback,  31  111.  117. 

*  Vanzant  v.  Vanzant,  23  lU.  540 ;  Miller  v.  Marckle,  27  111.  405  ;  Boyd  v.  Cud- 
derback, sup. 

5  Russell  V.  Rumsey,  35  111.  375 ;  PhiUips  v.  Springfield,  .39  lU.  83. 

«  Marshall  v.  Barr,  35  111.  108.  "^  Booker  v.  Anderson,  35  111.  86. 

8  Getzler  v.  Saroni,  18  lU.  518.  »  McCormick  v.  Wilcox,  25  111.  274. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  409 

deed.^  Before  the  statute  of  1857,  a  sale  under  a  deed  of 
trust  or  power  of  sale  mortgage  of  .a  homestead  estate  might 
be  good,  although  it  did  not  contain  an  express  release  or 
"waiver  of  the  homestead  right.  But  it  is  otherwise  under 
that  statute.^  There  is  no  lien  created  hy  a  judgment  against 
a  debtor  upon  his  homestead  which  affects  his  right  to  convey 
it  unincumbered.^  But  a  judgment  would  be  a  lien  upon  the 
excess  in  value  of  his  estate  above  $1,000.*  No  act  of  omis- 
sion or  commission  on  the  part  of  the  husband  or  his  creditors, 
can  affect  the  homestead  right  of  a  wife  or  children,  until  she 
has  done  what  the  statute  requires  in  order  to  release  it.^ 
But  where  husband  and  wife  joined  in  a  deed  of  the  premises, 
though  not  in  such  a  form  as  to  be  in  itself  a  release  of  the 
homestead,  and  then  removed  from  the  premises,  and  the  pur- 
chaser entered  upon  the  same  and  sold  them,  it  was  held  to 
work  an  estoppel  upon  the  wife  as  to  claiming  a  homestead 
right  therein.^  Independent  of  such  act  of  abandonment, 
the  grantee  of  a  husband,  without  the  concurrence  of  his  wife, 
cannot  maintain  ejectment  upon  such  conveyance  against  the 
claim  of  homestead  on  the  part  of  the  tenant.'''  A  grant  by 
the  husband  alone  conveys  a  fee  subject  to  the  homestead  right 
in  the  grantor.  Where,  therefore,  the  husband  conveyed  the 
homestead  by  deed  of  trust  in  which  the  wife  did  not  join, 
and  gave  the  grantee  possession,  he  held  it  against  a  second 
deed  of  trust  in  which  the  wife  did  join,  because  by  the  first 
deed  and  surrender  of  possession  his  homestead  right  was 
gone.^  But  a  mortgage  given  to  secure  the  purchase-money 
is  valid  .^ 

1  Smith  V.  Miller,  31  111.  161 ;  Young  v.  Graff,  28  111.  20;  Boyd  v.  Cudder- 
back,  31  111.  120;  Brown  v.  Coon,  36  111,243. 

2  Ely  V.  Eastwood,  26  111.  114;  Smith  v.  Marc,  26  111.  150. 
8  Green  v.  Marks,  25  111.  221. 

*  McDonald  v.  Crandall,  43  111.  231. 

6  Boyd  V.  Cudderback,  sup. ;  Pardee  v.  Lindley,  31  111.  187;  Hoskins  v.  Litch- 
field, 31  111.  144. 

6  Brown  v.  Coon,  36  111.  243. 

^  Connor  V.  Nichols,  31  111.  153 ;  Pardee  v.  Lindley,  31  111.  187 ;  Patterson  v. 
Kreig,  29  111.  518. 

8  McDonald  v.  Crandall,  43  111.231;  Coe  v.  Smith,  47  lU.  226;  Hewitt  v. 
Templeton,  48  111.  369 ;  Finley  v.  McConnell,  60  111.  263. 

»  Weider  v.  Clark,  27  111.  314. 


410  LAW   OF   REAL    PROPERTY.  [BOOK    L 

5.  In  Indiana,  a  conveyance  or  mortgage  of  homestead 
land,  in  order  to  be  valid,  must,  if  the  mortgagor  be  a  married 
man,  be  acknowledged  by  the  wife.  But  if  the  debtor  mort- 
gage his  estate,  and  a  decree  be  made  to  sell  the  same  in 
order  to  foreclose  the  estate,  he  could  not  avail  himself  of  the 
right  of  homestead,  even  though  his  wife  did  not  join  in  the 
deed.i 

6.  In  Iowa,  a  deed  of  mortgage  or  trust  conditioned  to  pay 
a  debt,  executed  by  husband  and  wife,  is  good  and  valid, 
though  it  contain  no  special  grant  or  release  of  the  homestead 
right,  and  may  be  enforced  accordingly. ^  But  a  mortgage  or 
conveyance  by  husband  alone  would  be  of  no  validity  unless 
given  for  the  purchase-money.^  So  a  conveyance  by  a  hus- 
band, for  which  he  receives  the  consideration,  will  be  void  as 
to  the  wife  and  not  pass  the  homestead,  if  she  does  not  join 
in  the  convej^ance,  and  will  be  set  aside  at  her  suit  if  joined 
by  the  husband.^  But  a  convej^ance  to  be  good  must  be  a 
joint  one,  if  both  be  living.  If  made  by  either  alone,  it  would 
be  void.^  And  in  order  to  foreclose  a  mortgage  made  by  hus- 
band and  wife  against  her,  she  must  be  made  a  party  to  the 
process.  It  might  be  effectual  against  him,  although  slie  was 
not  a  party.^  And  where  debtor  and  wife  joined  in  a  mort- 
gage of  the  homestead  and  other  estate,  and  then  made  other 
mortgages  of  the  same,  in  which  the  wife  did  not  join,  and 
proceedings  were  had  to  foreclose  them,  it  was  held  that  the 
officer  must  first  sell  the  parcels  exclusive  of  the  homestead 
right,  and  could  only  sell  that  to  make  up  a  deficiency  in  the 
first  mortgage,  since  the  homestead  was  wholly  exempt  from 
the  second  and  other  mortgages.  If  he  sold  the  whole  in  "  a 
lump  "  it  would  be  void.'^  A  mortgage  of  a  homestead  is  so 
far  a  personal  lien  in  favor  of  the  mortgagee,  that,  where  a 

1  2  Stat.  367  ;  Slaughter  v.  Detiney,  15  Ind.  49  ;  Sullivan  v.  Winslow,  22  Ind. 
153;  Stat.  1862,  p.  368. 

2  Babcock  v.  Hoey,  11  Iowa,  375  ;  Stevens  v.  Myers,  11  Iowa,  184. 

8  Burnap  v.  Cook,  16  Iowa,  153;  O'Brien  v.  Young,  15  Iowa,  5;  Morris  v, 
Sargent,  18  Iowa,  90 ;  Code  1873,  Tit.  18,  c.  2,  §  3072. 

*  Eli  V.  Gridley,  27  Iowa,  376  ;  Davis  v.  Kelley,  14  Iowa,  525. 

5  Alley  V.  Bay,  9  Iowa,  510 ;  Larson  v.  Reynolds,  13  Iowa,  581 ;  Davis  v. 
Kelley,  14  Iowa,  525. 

6  Larson  v.  Reynolds,  sup.  7  Lay  v.  Gibbons,  14  Iowa,  377. 


CH.  IX.  §  2.]  ESTATES   BY   MAERIAGE.  411 

debtor  and  wife  mortgaged  to  secure  his  debt,  and  he  then 
became  a  bankrupt,  and  the  mortgagee  released  his  mortgage, 
he  was  admitted  to  prove  his  whole  debt  and  take  his  divi- 
dend, although  objected  to  by  the  other  creditors.^  But  a 
mortgage  to  secure  the  purchase-money  takes  precedence  of 
a  homestead  claim.^  So  if  a  husband  make  a  bond  condition- 
ed to  convey  a  homestead,  the  court  will  not  decree  a  per- 
formance, unless  the  wife  join  in  the  bond.^  If  a  debtor 
clearly  and  actually  abandon  the  premises,  it  defeats  the  right 
of  homestead,  and  a  mortgage  then  made  by  him  will  be  valid, 
nor  will  a  subsequent  reoccupation  of  the  homestead  estate 
affect  the  validity  of  the  mortgage.*  So  if  one  sells  an  old 
homestead  and  invests  the  proceeds  in  the  purchase  of  a  new 
one,  he  will  hold  the  second  exempt  in  the  same  manner  as 
he  held  the  prior  one.^  And  if  a  householder  sell  his  home- 
stead to  acquire  another,  or  if  he  do  acquire  another,  the  sale 
would  be  good.  So  a  husband  or  wife  may  make  a  good  de- 
vise of  the  premises,  subject  to  the  homestead  right  of  the 
other  party .^  So  he  may  sell  it,  free  from  any  lien  by  judg- 
ment in  favor  of  a  judgment  creditor.''  But  one  taking  a  deed 
from  a  debtor,  in  which  is  a  recital  that  the  premises  are  those 
on  which  the  grantor  resides,  is  estopped  to  set  up  that  the 
grantor  had  abandoned  the  premises  as  his  residence.^  If  a 
husband  sells  his  homestead  and  takes  the  purchase-money, 
but  his  wife  does  not  join  in  the  deed,  it  is  void.  And  by 
joining  with  her  husband  the  wife  may  have  the  deed  declared 
void.  The  husband  would  not  be  estopped  to  maintain  such 
process,  although  he  might  be  if  he  had  proceeded  in  his  own 
name  alone.^ 

6  a.  A  deed  is  voidable  in  Kansas,  though  signed  by  the 
wife,  if  she  did  it  by  duress,  even  as  against  a  purchaser  who 
is  not  cognizant  of  the  duress. ^"^  But  a  deed  by  the  husband 
or  wife  alone  is  void,  and  does  not  even  throw  a  shadow  upon 
the  title.     And  the  husband  and  wife  may  sell  the  land  inde- 

1  Dickson  v.  Chorn,  6  Iowa,  19.  ^  Christy  v.  Dyer,  14  Iowa,  443. 

8  Yost  V.  Devault,  9  Iowa,  60.  ■*  Davis  v.  Kelley,  14  Iowa,  523. 

8  Robb  V.  McBride,  28  Iowa,  386  ;  Marshall  v.  Ruddick,  28  Iowa,  490. 
6  Stewart  r.  Brand,  23  Iowa,  481.  ^  Lamb  v.  Shays,  14  Iowa,  570. 

8  Williams  v.  Swetland,  10  Iowa,  51 ;  Christy  v.  Dyer,  14  Iowa,  4.38. 

9  EU  V.  Gridley,  27  Iowa,  378.  ^^  Anderson  v.  Anderson,  9  Ivan.  116 


412  LAW  OF  REAL  PROPERTY.  [bOOK  1. 

pendent  of  any  lien  by  judgment  or  by  mortgage  executed  by 
one  of  the  parties  alone. ^  In  Kentucky,  the  estate  may  be 
sold  subject  to  a  homestead  right.  But  no  mortgage  release 
or  waiver  of  a  homestead  will  be  good  unless  signed  by  the 
debtor  and  wife  and  duly  recorded.^ 

7.  In  Massachusetts,  a  homestead  estate  may  be  conveyed 
or  released  by  a  deed  in  which  the  husband  and  wife,  if  he 
have  one,  join  with  proper  words  expressly  covering  the  home- 
stead right,  and  a  declaration  that  she  joins  to  release  the 
same  ;  otherw  ise,  it  will  be  of  no  avail,  even  though  the  grantor 
covenant  as  to  the  title.  But  if  it  embrace  other  land  as  well 
as  the  homestead,  it  will  be  good  as  to  such  other  lands.  And 
if  the  wife  join  in  a  deed  of  mortgage  of  a  homestead  estate, 
the  right  of  homestead  remains  unimpaired  as  to  all  the  ex- 
cess over  and  above  the  mortgage,  and  those  interested  in  the 
same  may  redeem  the  premises  from  such  mortgage.^  The 
husband  may  convey  by  deed  the  surplus  or  reversionary  in- 
terest which  he  has  after  satisfying  the  homestead  right  of  his 
wife  and  children.^  Nor  would  a  conveyance,  of  this  right  of 
surplus  or  reversion,  with  a  fraudulent  intent  as  to  creditors, 
affect  his  own  right  of  homestead  during  his  wife's  life.^  If 
a  homestead  come  to  a  widow  and  minor  children,  the  same 
may  be  sold  by  her  and  the  guardian  of  such  children,  and 
the  purchaser  will  thereby  have  the  rights  of  the  widow  and 
children.^  A  guardian  of  minor  children  can  convey  no  rights 
of  his  ward  in  a  homestead  estate  by  a  separate  deed,  if  the 
widow  be  alive ;  it  must  be  by  a  joint  deed  of  him  and  the 
widow.  But  if  there  be  no  widow,  he  may  convey  it  upon 
beino;  licensed.  If  there  are  no  children,  the  widow  alone  can 
convey.  The  object  of  the  statute  is  to  provide  a  home  for  the 
householder's  widow  and  children  during  their  widowhood 
and  minority,  or  for  such  of  them  as  choose  to  occupy  it,  to 

1  DoUman  v.  Harris,  6  Kan.  598 ;  Morris  v.  Ward,  5  Kan.  239 ;  Gen.  Stat. 
c.  38,  §  I. 

2  Gen.  Stat.  1873,  p.  433. 

3  Gen.  Stat.  c.  104 ;  Greenough  v.  Turner,  11  Gray,  334 ;  Schoway  v.  Brown, 
12  Allen,  82  ;  Connor  v.  McMurray,  2  Allen,  202  ;  McMurray  v.  Connor,  2  Allen, 
205 ;  Adams  v.  Jenkins,  16  Gray,  146. 

'•  Sillovvay  v.  Brown,  12  Allen,  32 ;  McMurray  v.  Connor,  sup,  ^  Ibid. 

6  Gen.  Stat.  c.  104 ;  Abbott  v.  Abbott,  97  Mass.  136. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  413 

be  held  and  enjoyed  by  them  together,  neither  of  them  hav- 
ing a  right  which  they  can  transfer  to  a  stranger  without  the 
consent  of  the  others.  The  estate  of  the  widow  and  children, 
after  the  death  of  the  husband,  most  nearly  resembles  that  of 
entirety  of  husband  and  wife.^  So  a  homestead  may  be  mort- 
gaged to  secure  the  purchase-money,  if  done  as  a  part  of  the 
transaction  of  purchase.'^  And  whatever  reversionary  inter- 
est there  is  in  a  husband,  after  answering  the  wife's  and 
children's  rights  of  homestead,  may  be  sold  or  mortgaged  by 
him  subject  thereto.^  But  if  a  mortgagee  of  such  reversionary 
interest  seeks  to  foreclose  the  mortgage  by  suit  or  entry,  he 
may  do  so  ;  but  he  cannot  disturb  the  possession  of  any  one 
holding  under  the  homestead  right,  though  it  be  the  mort- 
gagor himself,  and  though  he  covenanted  in  his  deed  for  the 
title.  The  purposes  of  the  exemption  being  chiefly  for  the 
benefit  of  the  wife  and  children,  the  law  does  not  allow  him 
to  convey  the  premises  without  his  wife  joining  in  the  con- 
veyance.* Covenants  of  warranty  do  not  estop  one  from 
claiming  an  estate  of  homestead  in  lands  conveyed  by  him, 
which  existed  in  favor  of  his  wife  and  children  at  the  time  he 
made  the  conveyance.^ 

8.  In  Michigan,  a  mortgage  given  for  the  purchase-money  is 
good,  but  for  any  other  purpose  it  is  of  no  validity,  if  the 
mortgagor  be  married,  unless  his  wife  joins  in  the  deed.  Nor 
can  a  homestead  be  convej'-ed  or  encumbered  without  the  sig- 
nature and  acknowledgment  of  the  wife  to  the  deed.^  Nor 
would  it  be  valid  though  made  by  the  husband  alone,  and 
in  pursuance  of  a  parol  agreement  between  the  husband,  wife, 
and  grantee,  that  the  latter  was  to  support  them,  which  he 
has  ever  been  ready  to  perform.'^  But  if  it  covers  more  than 
the  homestead,  it  will  be  good  for  all  such  excess,  though  not 


1  Abbott  V.  Abbott,  97  Mass.  130. 

2  N.  E.  Jewelry  Co.  v.  Merriam,  2  Allen,  390. 

3  Smith  V.  Provin,  4  Allen,  516 ;  White  v.  Rice,  5  Allen,  76  ;  Doyle  v.  Cobum, 
6  Allen,  71. 

*  Doyle  V.  Cobum,  6  Allen,  71 ;  Connor  v.  McMunay,  2  Allen,  202  ;  Castle  v. 
Palmer,  6  Allen,  404. 

6  Doyle  V.  Cobum,  6  Allen,  71.  «  Frisbee  v.  Muster,  24  Mich.  452. 

»  Ring  V.  Burt.  17  Mich.  472. 


il4  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

signed  by  the  wife.^  Accordingly,  where  upon  a  process  to 
foreclose  a  mortgage,  the  mortgagor  claimed  exemption  of  the 
homestead,  the  court  ordered  it  to  be  appraised  and  set  out 
from  the  mortgaged  premises,  so  as  to  include  the  dwelling- 
house  and  other  necessary  buildings,  and  the  remainder  of  the 
estate  to  be  sold.^ 

9.  In  Minnesota,  no  alienation  of  a  homestead  can  be  made, 
unless  the  wife,  if  the  grantor  has  one,  joins  in  the  deed,  with 
the  exception  of  mortgages  given  to  secure  the  purchase- 
money,^  and  liens  for  work  done  upon  the  house.*  A  husband 
forfeits  his  rights  under  the  homestead  law  by  a  conveyance 
to  the  wife  to  defraud  creditors.^ 

9  a.  By  the  statute  of  Mississippi,  of  1867,  a  husband  may 
sell  the  homestead  for  the  purpose  of  reinvesting  it  in  a  new 
homestead,  and  he  has  a  year  in  which  to  do  this.  The  hus- 
band, having  the  right  to  select  and  fix  the  homestead,  is  at 
liberty  to  change  it.^  He  may  sell  the  homestead,  or  any 
part  of  it,  free  from  any  lien  of  judgment  existing  during  the 
homestead  right.  Nor  could  a  judgment  creditor  follow  it 
into  a  purchaser's  hands.'^  In  Nebraska,  a  husband  and  wife 
may  make  a  valid  mortgage  of  their  homestead.^  In  Nevada, 
a  husband  cannot  convey,  mortgage,  or  lease  the  homestead 
without  the  concurrent  act  of  the  wife.  Unless  she  is  insane, 
when  the  court  may  authorize  it  to  be  done,  and  the  proceeds 
invested  as  the  court  shall  direct.^ 

10.  In  New  Hampshire,  the  only  way  in  which  a  homestead 
estate  can  be  effectually  waived  or  released,  is  by  a  deed  exe- 
cuted by  a  husband  and  wife,  if  she  be  alive,  or,  if  dead,  leav- 
ing minor  or  insane  children,  the  judge  of  probate  must  assent 
thereto.  The  exception  to  this  is  a  mortgage  to  secure  the 
purchase-money.^*^   But  the  right,  as  such,  is  not  the  subject 

1  Const,  art.  16,  Stat.  c.  132 ;  Beecher  v.  Baldy,  7  Mich.  488 ;  Dye  v.  Mann, 
10  Mich.  291 ;  McKee  v.  Wilcox,  11  Mich.  360. 

2  Dye  V.  Mann,  10  Mich.  291. 

3  Olson  V.  Nelson,  3  Minn.  53;  Lawver  v.  Slingerland,  11  Minn.  457. 

4  Stat,  at  Large,  1873,  c.  33,  Tit.  5.  ^  Piper  v.  Johnson,  12  Minn.  60. 

6  Thorns  V.  Thorns,  45  Miss.  275,  276 ;  Parker  v.  Dean,  45  Miss.  423. 

7  Parker  v.  Dean.  sup.  »  Re  Cross,  2  Dill.  320. 
9  Clark  V.  Shannon,  1  Nev.  668 ;  Goldman  v.  Clark,  1  Nev.  607. 

10  Norris  v.  Moulton,  34  N.  H.  394;  Stat.  1868,  §§  33-37. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  415 

of  grant  or  assignment  to  a  third  person  any  more  than  that 
of  a  wife  to  dower  during  coverture.^  But  so  far  as  a  hus- 
band has  an  interest,  independent  of  his  wife  and  children, 
in  a  homestead  estate,  he  is  at  liberty  to  convey  it  subject  to 
their  rights,  and  may  enter  into  covenants  in  respect  to  the 
same  which  will  bind  and  estop  him,  as  in  the  conveyance  of 
any  other  estate.  Thus,  if  he  make  a  deed  in  which  his  wife 
does  not  join,  the  purchaser  takes,  subject  to  her  right,  upon  her 
becoming  the  grantor's  widow,  of  having  the  same  set  out  to 
her  and  the  minor  children  to  hold  as  long  as  it  is  occupied 
as  a  homestead.^  In  such  cases  the  husband  conveys  the  es- 
tate, subject  to  her  homestead  right,  in  the  same  way  as  he 
conveys  one  subject  to  the  right  of  dower  in  the  wife,  if  she 
survives  him.  But  it  may  be  demanded  by  husband  and  wife 
during  her  life,  and  perhaps  by  her  alone,  or  after  the  hus- 
band's death  she  and  the  minor  children  may  demand  it.^ 
But  if  he  convey  with  covenants  of  warranty,  he  would  be 
estopped  to  claim  it  against  his  grantee  or  his  assigns.  Nor 
would  it  be  any  bar  to  an  action  by  such  grantee  to  recover 
possession  of  such  estate,  that  the  grantor's  children  were 
entitled  to  a  homestead  therein,  unless  the  same  had  been  set 
out  and  assigned  as  such.  And  if  such  grantor  attempted  to 
have  a  homestead  set  out  against  a  grantee,  he  would  be  es- 
topped in  equity  from  so  doing.  Nor  could  his  wife  and 
minor  children  do  this  during  the  husband's  life,  in  proceed- 
ings against  a  purchaser  with  covenants.  They  would  be  as 
much  estopped  thereby  as  the  husband.*  If,  when  a  husband 
conveys  a  part  of  his  estate,  he  leaves  enough  to  answer  the 
homestead  claim,  his  conveyance  will  be  good.^ 

10  a.  In  New  Jersey,  a  homestead  cannot  be  sold  nor  leased 
for  more  than  one  year,  unless  by  the  consent  of  husband  and 
wife  by  deed  duly  acknowledged  and  for  its  full  value,  and 
the  sum  invested  in  a  new  homestead.  It  cannot  be  leased 
without  the  wife's  consent.^ 

1  Gunnison  v.  Twitchel,  38  N.  H.  62 ;  Foss  v.  Strachn,  42  N.  H.  42. 

2  Atkinson  v.  Atliinson,  37  N.  H.  434 ;  Gunnison  v.  Twitchel,  38  N.  H.  67  • 
Horn  V.  Tufts,  39  N.  H.  485. 

3  Gunnison  v.  Twitchel,  38  N.  H.  67 ;  Foss  v.  Strachn,  42  N.  H.  42. 

*  Foss  V.  Strachn,  sup.  6  Horn  v.  Tufts,  39  N.  H.  478. 

6  Dig.  1868. 


416  LAW   OF   REAL   PROPERTY.  [bOOK   T. 

11.  In  New  York,  a  householder  might  release  his  home- 
stead right,  by  conveying  the  laud  in  the  mode  required  for 
ordinary  conveyances.^ 

11a.  In  North  Carolina,  if  husband  convey  the  estate  in 
which  he  has  claimed  the  right  of  homestead,  under  circum- 
stances to  be,  otherwise,  fraudulent  as  to  creditors,  it  will  not 
affect  the  vendee's  right  to  hold  the  homestead  against  the 
creditors,  inasmuch  as  what  he  had  conveyed  could  not  have 
been  levied  on  for  his  debts.^  But  no  sale  of  a  homestead  can 
be  valid,  where  the  grantor  has  a  wife,  unless  she  voluntarily 
signs  and  acknowledges  the  deed  of  conveyance.^ 

12.  In  Ohio,  the  wife  must  join  with  the  husband  in  making 
a  good  mortgage  of  the  homestead  estate,  whereby  either  she 
or  her  family  are  to  be  affected.  And  where  husband  and 
wife  by  joint  deed  conveyed  the  estate  to  defraud  his  creditors, 
and  the  deed  was  set  aside  as  fraudulent  upon  application  of 
a  creditor,  it  was  held  that  the  debtor  might  set  up  a  claim  of 
homestead  against  such  creditor,  on  the  ground  that  he  him- 
self had  held  the  deed  to  be  of  no  effect.* 

12  a.  In  South  Carolina,  a  sale  of  an  intestate  estate  by  or- 
der of  the  judge  of  probate  is  no  bar  to  a  widow's  claim  of 
homestead  out  of  the  same.^  In  Tennessee,  if  the  owner  is 
married,  his  wife  must  join  with  him  in  aliening  or  mortgaging 
the  homestead  to  be  valid,  except  that  he  may  mortgage  it  for 
the  purchase-money.  And  if  he  ceases  to  occupy  it,  it  becomes 
liable  to  be  levied  upon  by  his  creditors.^ 

13.  In  Texas,  a  householder  having  no  wife  might  convey 
the  estate,  though  by  so  doing  he  defeats  the  rights  of  his  chil- 
dren therein.  And  a  creditor's  judgment  binds  such  estate  as 
against  the  debtor's  children^  But  if  he  have  a  wife,  he  can 
only  alienate  the  estate  by  her  assent.^  And  this  assent  must 
be  evidenced  by  a  deed  signed  and  acknowledged  by   her.^ 

1  3  Rev.  Stat.  647  ;  Smith  v.  Brackett,  36  Barb.  571 ;  4  Stat,  at  Large,  Pt.  3, 
c.  260. 

2  Crummen  v.  Bennett,  68  N.  C.  495.  3  Const.  1868,  c.  10. 
4  Rev.  Stat.  1145 ;  Sears  v.  Hanks,  14  Ohio  St.  298 ;  Stat.  1868. 

6  Ex  parte  Strobel,  2  S.  C.  309.  6  Stat.  1858. 

7  Tadlock  v.  Eccles,  20  Texas,  792 ;  Brewer  v.  Wall,  23  Texas,  589. 

8  Const,  art.  22,  Stat.  1839;  Sampson  v.  Williamson,  6  Texas,  118. 

9  Cross  V.  Evarts,  28  Texas,  532 ;  Houghton  v.  Marshall,  81  Texas,  198. 


CH.  IX.  §   2.]  ESTATES    BY    MARRIAGE.  417 

Nor  would  a  sale  by  the  husband  affect  the  wife's  right  of 
homestead,  although,  before  it  had  taken  place,  she  had  sepa- 
rated from  him.i  A  sale  by  the  husband,  without  the  wife's 
joining  in  the  conveyance,  is  a  nullity.'^  But  if  he  survive 
her,  he  may  dispose  of  the  homestead  for  the  purpose  of  pro- 
curing a  new  one.^  And  a  mortgage  with  power  of  sale,  or 
a  deed  in  trust  to  sell  the  premises  made  by  husband  and  wife, 
whereby  the  mortgagee  or  trustee  might  sell  without  any  action 
or  decree  of  the  court,  would  be  good.  But  if  to  enforce  it,  it 
became  necessary  to  have  the  mortgaged  premises  sold  under 
process  of  the  court,  it  would  come  under  the  character  of 
forced  sale,  and  would  not  be  sustained  even  though  signed  by 
the  husband  and  wife.*  Nor  can  any  contract  of  sale  of  a  home- 
stead be  enforced  without  or  against  the  consent  of  the  wife.^ 
But  the  presence  of  a  wife,  and  the  occupancy  by  them  both, 
seems  to  be  requisite  in  order  to  render  her  signature  necessary 
to  a  deed.  Thus,  where  the  husband  came  into  the  State, 
and  purchased  land,  and  acquired  a  homestead  and  sold  it  be- 
fore she  had  removed  into  the  State,  it  would  seem  that  such 
sale  would  be  good  against  her  claim  of  homestead  right.^ 
And  where  a  husband  sold  his  estate,  and  then  he  and  liis 
wife  abandoned  it,  it  was  held  to  make  his  conveyance  of  it 
good."  And  as  the  object  of  the  statute  is  principally  to  secure 
to  a  wife  her  right  of  homestead,  if  a  husband,  without  her 
joining  in  it,  sell  or  mortgage  one  homestead  and  then  acquire 
a  new  one,  it  will  give  validity  to  the  alienation  of  the  first. 
And  the  first,  in  such  case,  would  be  subject  to  levy  by  the 
husband's  creditors.^  If  a  householder  contract  to  convey  his 
homestead  and  fail  to  do  so,  he  would  be  liable  in  damages  for 
such  breach.  But  if  he  have  a  wife,  the  court  would  not  com- 
pel him  to  convey  the  premises,  so  long  as  the  premises  were 
occupied  as  such.    But  if,  in  such  case,  he  acquire  a  new  home- 

1  Homestead  cases,  31  Texas,  692.  2  Rogers  v.  Renshaw,  37  Texas,  625. 

3  Morrell  v.  Hopkins,  36  Texas,  686. 

*  Sampson  v.  Williamson,  6  Texas,  102-118  ;  Lee  v.  Kingsbury,  13  Texas,  71 ; 
Stewart  v.  Mackaj',  16  Texas,  68. 

5  Berlin  v.  Burns,  17  Texas,  537  ;  Brewer  v.  Wall,  23  Texas,  580;  Allison  v. 
Shilling,  27  Texas,  454. 

6  Meyer  v.  Claus,  15  Texas,  519.  ■>  Jordan  v.  Goodman,  19  Texas,  273. 
8  Berlin  v.  Burns,  17  Texas,  587;  Stewart  v.  Mackay,  16  Texas,  58. 

vol..  I.  27 


418  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

stead,  or  his  wife  were  to  die,  the  court  would  enforce  a  spe- 
cific performance,  by  decree,  as  he  then  becomes  able  to  con- 
vey.^ A  sale  of  the  debtor's  homestead,  though  with  an  intent 
to  defraud  creditors,  cannot  be  impeached  on  that  account,  as 
by  such  sale  he  does  not  take  away  any  right  of  levy  from  the 
creditor.^ 

14.  In  Vermont,  a  mortgage  to  secure  the  purchase-money 
is  good.  So  a  mortgage  by  a  husband  alone  would  be  good 
as  against  any  thing  but  the  contingent  homestead  interest  of 
the  wife.  And  if  he  acquire  a  new  homestead,  his  conveyance 
of  his  former  one  will  be  effectual,  to  all  intents,  on  the  ground 
that  one  cannot  have  two  homesteads  at  the  same  time.  But 
so  long  as  it  is  the  homestead  of  a  party,  he  cannot  do  any 
thing  to  impair  his  wife's  right  therein,  unless  she  joins  in  a 
deed  thereof.  And  this  must  be  done  by  deed,  in  which,  she 
is  to  join  as  well  in  signing  as  in  acknowledging  it,  though  the 
husband  may  mortgage  the  estate  for  the  purchase-money. 
But  the  wife's  joining  in  releasing  or  conveying  her  right  of 
homestead  does  not  affect  her  right  of  dower  in  the  premises.^ 
A  conveyance  by  husband  and  wife  of  a  homestead  estate,  can- 
not be  impeached  by  creditors  on  the  score  of  fraud,  although 
it  might  have  been  if  it  had  not  been  a  homestead.*  A  deed 
by  the  husband  alone  would  not  be  effectual  to  disturb  the 
occupancy  of  the  husband  and  family,  so  long  as  they  con- 
tinued such  occupancy.^  This  right  is,  if  she  survive  him,  to 
enjoy  it  as  a  homestead.  So  that,  with  this  limitation,  a  hus- 
band has  full  power  of  disposal  of  the  estate,  and  the  purchaser 
under  him  may  have  a  right  to  the  use  and  possession  of  the 
premises  during  coverture.  And  this  right  of  a  wife  in  one 
homestead  may  be  lost  by  his  gaining  a  new  one.^  The  home- 
stead, upon  the  death  of  the  husband,  descends  to  the  widow 
and  children,  free  from  his  debts,  and  vests  in  them.     The 

1  Brewer  v.  Wall,  23  Texas,  559. 

2  Wood  V.  Chambers,  20  Texas,  254 ;  Cox  v.  Shropshire,  25  Texas,  125 ; 
Martel  v.  Somers,  26  Texas,  559. 

3  Stat.  1862,  App.  70.  *  Danforth  v.  Beattie,  43  Vt.  138. 

5  Day  V.  Adams,  42  Vt.  516. 

6  Comp.  St.  390,  391 ;  Meech  v.  Meech,  37  Vt.  414  ;  Howe  v.  Adams,  28  Vt. 
544 ;  Jewett  v.  Brock,  32  Vt.  65 ;  Davis  v.  Andrews,  30  Vt.  678 ;  Stat.  1862. 
App.  70. 


CH    IX.  §  2.]  ESTATES    BY   MARRIAGE.  419 

husband  cannot  affect  this  right  by  will,  though  lie  may  devise 
property  to  her  upon  condition  she  waives  her  homestead, 
and  compel  her  to  elect.  She  cannot  take  dower  and  home- 
stead too,  except  that  if  she  claim  both,  the  homestead  value 
is  to  be  deducted  from  the  dower,  and  that  will  be  set  out 
accordingl3^  The  husband  may  make  provision  for  her  by 
will  in  lieu  of  dower.  But  in  such  case  her  homestead  right 
is  not  affected.^ 

14  a.  In  Virginia,  a  homestead  can  only  be  conveyed  or  in- 
cumbered by  the  wife  joining  with  the  husband  in  the  act,  un- 
less the  owner  be  single.  A  homestead  may  be  sold  and  the 
proceeds  invested  in  a  new  homestead.^ 

15.  In  Wisconsin,  the  signature  of  the  wife  to  the  husband's 
deed,  and  her  acknowledgement  of  it,  are  essential  to  its 
validity  for  any  purpose,  even  as  against  his  own  claim.^  But 
this  does  not  apj)ly  to  his  selling  a  dwelling-house  standing  on 
the  land  of  another,  and  assigning  a  lease  thereof,*  nor  of  any 
other  than  the  homestead  estate.^  A  voluntary  conveyance 
by  husband  and  wife,  of  a  homestead,  does  not  subject  it  to 
levy  for  his  debts,  although  made  with  intent  to  defraud  cred- 
itors, and  although  the  grantee  convey  the  same  to  the  wife, 
provided  they  both  continue  to  reside  thereon.^  If  a  husband 
hold  a  patent  for  land  under  the  State,  so  that  a  homestead 
right  attaches  to  the  same,  he  cannot  convey  it  without  his 
wife  joins  in  the  deed."  If  husband  and  wife  mortgage  a  home- 
stead, and  it  is  foreclosed,  the  mortgagee  comes  into  the  mort- 
gagor's place  of  having  a  right  to  select  the  homestead,  and  to 
have  it  set  out.^  Where  husband  and  wife  conveyed  the  estate, 
and  he  was  afterwards  declared  bankrupt,  and  the  conveyance 
was  set  aside  as  fraudulent  and  void,  it  was  held  that  his  deed 
did  not  bar  his  claim  of  homestead,  that  it  passed  to  the  assigns 
subject  to  this  right,  and  a  sale  of  the  estate  b}?-  order  of  the 
bankrupt  court  had  no  effect  to  cut  off  this  homestead  right.^ 

1  Meech  v.  Meech,  37  Vt.  414;  Acts  1866.  2  Code  of  1873. 

3  Stat.  c.  134,  §  23 ;  Halt  v.  Houle,  19  Wis.  472 ;  Williams  v.  Starr,  6  Wis. 
550 ;  Phelps  v.  Rooney,  9  Wis.  82 ;  Stat.  1858,  c.  124,  §  23. 

4  Platto  y.  Cady,  12  Wis.  461.  5  Rait  v.  Houle,  sup. 

6  Dreutzer  v.  Bell,  11  Wis.  114;  McFarland  v.  Goodman,  22  Am.  Law  Reg. 
697. 

7  McCabe  v.  Mazzuchelli,  13  Wis.  478.  8  Kent  v.  Agard,  22  Wis.  152, 
9  McFarland  v.  Goodman,  22  Am.  Law  Reg.  G97. 


420  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

DIVISION  YII. 

HOW  HOMESTEAD  EIGHTS  RIAY  BE  WAIVED  OR  LOST. 


1. 

Grounds  on  which  homestead  may  be  lost. 

2. 

How  homestead  lost  in  California. 

3. 

How  lost  in  Georgia. 

4. 

How  lost  in  lUinoi.s. 

5. 

How  lost  in  Indiana. 

6. 

How  lost  in  Iowa. 

7. 

How  lost  in  Massachusetts. 

8. 

How  lost  in  Michigan. 

9. 

How  lost  in  Minnesota,  Mississippi,  and  New  Jersey. 

10. 

How  lost  in  New  Hampshire. 

10  a. 

How  lost  in  Nevada. 

11. 

How  lost  in  New  York. 

12. 

How  lost  in  Ohio. 

13. 

How  lost  in  Pennsylvania. 

14. 

How  lost  in  Texas. 

15. 

How  lost  in  Vermont. 

16. 

How  lost  in  Wisconsin. 

1.  The  same  diversity  prevails  in  the  different  States,  as  to 
how  far  and  by  what  means  a  homestead  right  once  acquired 
can  be  lost  by  abandoning  the  premises,  though,  as  a  general 
proposition,  whenever  a  new  homestead  is  gained,  the  prior 
one  is  lost.  In  Arkansas,  a  temporary  absence  from  a  home- 
stead is  not  a  forfeiture  of  it.^ 

2.  In  California,  merely  removing  from  the  premises  to  oc- 
cupy rented  land  elsewhere,  or  because  it  was  dangerous  to 
occupy  the  homestead  as  such,^  does  not  defeat  such  a  right. 
But  where  he  sold  the  premises  without  his  wife's  joining  in 
the  deed,  and  they  thereupon  removed  from  the  premises,  it 
was  held  to  be  an  abandonment  of  the  homestead  right.^  But 
now  no  homestead  will  be  held  to  be  abandoned,  unless  by  a 
written  declaration  to  that  effect,  signed  by  the  husband  and 
wife,  or  other  head  of  the  family,  and  acknowledged  and  re- 
corded.    And  no  mortgage  is  valid  even  if  signed  by  both  of 

1  Tomlinson  v.  Swinney,  22  Ark.  400. 

2  Holden  v.  Pinney,  6  Cal.  234 ;  Dunn  v.  Tozer,  10  Cal.  171 ;  Moss  v.  Warner 
10  Cal.  296. 

8  Taylor  v.  Hargous,  4  Cal.  273. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  421 

them.i  And  where  a  homestead  right  has  once  attached,  a 
wife  does  not  lose  her  right  therein  by  eloping  and  living  in 
adultery.  Nor  would  a  mortgage  by  the  husband,  after  such 
elopement,  avail  against  his  family  of  children.^ 

3.  In  Georgia,  as  the  husband  cannot  defeat  the  wife's  right 
of  homestead  by  removing  from  the  premises,  if  he  occupies 
a  new  estate,  he  does  not  affect  his  right  of  homestead  already 
gained  in  the  former  one,  unlesss  he  owns  the  new  estate.^ 
But  he  can  waive  the  right  of  homestead,  and  thereby  bind 
his  wife  and  children.* 

4.  In  Illinois,  a  right  of  homestead  may  be  lost  to  a  house- 
holder, if  he  ceases  to  occupy  it  as  a  residence,  or  ceases  to 
have  a  family.^  But  if  a  husband  abandon  the  premises,  leav- 
ing his  wife  and  children  thereon,  he  does  not  affect  the  right 
of  homestead  even  as  to  himself,  unless  he  shall,  in  the  mean 
time,  have  acquired  a  home  and  settlement  elsewhere.^  He 
would  not  lose  this  right  if  he  leaves  the  premises,  and  going 
to  another  State  to  find  another  home,  and  failing  to  find  one, 
he  returns  to  his  original  home.'^  Nor  would  it  be  an  aban- 
donment of  this  right,  if  he  leave  the  premises  and  go  into 
another  county  in  search  of  another  home,  until  he  shall  have 
gained  one.  And  if,  having  removed  his  family  in  this  way, 
the  husband  abandon  them  before  he  has  provided  a  new  home 
for  them,  she  might  return  to  the  one  he  had  abandoned,  and 
resume  possession  of  it.  Nor  can  a  widow  who  has  minor 
children  affect  their  rights  by  intentionally  abandoning  the 
homestead.^  A  wife's  right  may  be  barred  or  lost  by  her  join- 
ing her  husband  in  a  release,  by  the  estate  being  sold  to  pay 
the  purchase-money  or  money  expended  in  improvements,  or 
by  abandonment.  But  on  no  other  ground  can  a  husband 
affect  his  wife's  right.^     But  no  release  or  waiver  of  homestead 

1  Cohen  v.  Davis,  20  Cal.  187.  2  Lies  v.  De  Diablar,  12  Cal.  329. 

8  Bearing  v.  Thomas,  25  Ga.  224.  *  Taliafero  v.  Pry,  41  Ga.  622. 

&  Green  v.  Marks,  25  111.  221 ;  Tourville  v.  Pierson,  39  111.  447. 
6  Moore  v.  Dunning,  29  111.  185  ;  Best  v.  Allen,  30  111.  30;  White  v.  Clark,  36 
El.  289. 

T  Kitchen  V.  Burgwin,  21  III.  40. 

8  Walters  v.  People,  21  111.  179;  Vanzant  v.  Vanzant,  23  111.543;  Miller  v. 
Marckle,  27  111.  405;  Ives  v.  Mills,  37  111.  73;  Cabeen  v.  Mulligan,  lb.  230. 

9  Booker  v.  Anderson,  35  111.  87 ;  White  v.  Clark,  36  111.  289. 


422  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

is  valid  unless  made  in  writing,  subscribed  and  acknowledged 
by  husband  and  wife,  in  which  there  is  an  express  release  of 
the  homestead  right.^  But  where  the  parents  died  leaving 
minor  children,  and  the  estate  was  rented  by  their  guardian 
while  they  lived  in  his  family,  it  was  held  not  to  be  an  aban- 
donment of  the  homestead.^  If  husband  remove  with  his 
family  on  to  another  farm  than  that  in  which  he  has  a 
homestead,  and  sells  the  latter,  it  is  an  abandonment  and  his 
homestead  is  lost.^  So  if  one  sells  his  homestead  and  surren- 
ders the  possession  to  the  purchaser,  and  leaves  it  himself, 
it  is  an  abandonment  and  loss  of  homestead.^  But  a  tempo- 
rary absence  from  a  homestead  is  not  an  abandonment  of  it. 
A  husband  may  control  the  subject  of  his  own  residence,  and 
if  he  and  his  family  leave  his  homestead  for  a  new  residence, 
it  is  an  abandonment  of  the  former  one.^  After  the  husband's 
death,  a  widow  can  abandon  the  homestead,  and,  if  she 
acquires  a  new  home,  she  abandons  it,  unless  it  be  a  temporary 
home.^  And  by  such  abandonment  the  homestead  is  lost  to 
the  children,  slie  being  the  head  of  the  family^  But  an 
abandonment  by  the  owner  of  a  homestead,  after  it  has  been 
sold  upon  execution,  has  no  effect  to  give  validity  to  such  sale.^ 
The  right  of  homestead  may  be  lost  by  removal  or  abandon- 
ment by  the  husband,  but  not  by  any  laches  on  his  part  in 
allowing  a  judgment  in  ejectment  to  be  rendered  against 
him.^  If  a  debtor  remove  from  the  State,  and  remain  two 
years,  it  would  be  held  an  abandonment  of  homestead.^*'  A 
sale  by  husband  and  wife,  followed  by  possession  given  to  the 
purchaser,  who  pays  the  purchase-money,  would  bar  the  right 
of  homestead,  as  amounting  to  an  abandonment,  although 
nothing  were  said  of  this  right  in  the  deed.     But,  being  in 

1  Stat.  1869,  c.  48  a,  p.  327;  1873,  p.  226;  Hutchins  v.  Huggins,  59  111.  33. 

2  Brinkerhoff  v.  Everett,  38  111.  265. 

3  Phillips  V.  Springfield,  39  111.  86  ;  Titman  v.  Moore,  43  111.  174. 

4  McDonald  v.  Crandall,  43  111.  231. 

5  Titman  v.  Moore,  43  111.  169 ;  Wiggin  v.  Chance,  54  111.  175 ;    Cipperly  v. 
Rhodes,  53  111.  346. 

6  Wright  V.  Dunning,  46  111.  275 ;  Buck  v.  Conlogue,  49  111.  395. 

7  Buck  V.  Conlogue,  sup.  *  Wiggin  v.  Chance,  54  111.  175. 
9  Hubbel  V.  Canady,  58  111.  427  ;    Vosey  v.  Board,  &c.,  59  111.  191. 

10  Cabeen  i-.  Mulligan,  37  111.  230.     But  see  Cipperly  v.  Rhodes,  53  111.  346. 


CH.  IX.  §  2.]  ESTATES    BY    MARRIAGE.  423 

the  nature  of  an  estoppel,  it  would  only  bar  it  as  to  the  pur- 
chaser, and  those  claiming  under  him.^  If  homestead  is 
abandoned  or  barred  by  husband  and  wife,  during  their  joint 
lives,  it  binds  the  rights  of  the  children  also.^  By  removing 
his  famil}^  from  the  homestead,  intending  to  have  it  no  longer 
a  homestead,  it  is  said  the  husband  may  defeat  an  existing 
right  therein,  though  the  court  intimate  that,  in  order  to  do 
this,  it  might  be  necessary  that  he  should  first  have  acquired 
another  home.^  But  if  husband  and  wife  make  a  deed  of  the 
premises,  and  then  remove  therefrom,  it  would  work  an 
abandonment  as  to  a  third  person,  to  whom  the  grantee  had 
conveyed  the  premises."*  And  it  was  held  not  to  be  an  aban- 
donment on  the  part  of  a  widow  if  she  were  to  leave  her 
homestead  for  a  temporary  purpose,  intending  to  return  and 
occupy  the  premises  again.^ 

5.  In  Indiana,  this  right  is  one  that  may  be  waived,  being 
of  a  personal  character,  as  where  the  debtor  allowed  a  cred- 
itor to  go  on  and  levy  his  execution  upon  the  premises,  without 
asserting  his  homestead  right  therein,  it  was  held  to  be  a 
waiver  of  the  same.^  But  a  mere  absence  from  the  premises 
does  not  defeat  the  debtor's  right  as  a  "resident  house- 
holder." "<  Nor  would  he  have  lost  his  homestead  right  by 
removing  from  one  part  of  the  State  to  another,  with  his 
family,  but  not  at  the  time  occupying  a  home.^ 

6.  In  Iowa,  a  householder  may  change  his  homestead  from 
time  to  time,  at  his  election.^  Nor  has  his  wife  any  control 
in  the  matter.  But  his  merely  selling  an  estate,  though  ac- 
companied by  a  declaration  that  it  was  not  his  homestead,  Avill 
not  affect  her  rights  to  the  same.  The  husband  may  so  aban- 
don the  premises  as  to  defeat  the  existing  homestead  in  the 
premises.     But  a  mere  temporary  absence  will  not  do  this.   If 

1  Brown  v.  Coon,  36  111.  243;   Flshback  v  Lane,  36  HI.  438. 

2  Brown  v.  Coon,  36  111.  248. 

3  Hoskins  v.  Litchfield,  31  111.  144.  *  Brown  v.  Coon,  3G  111.  243, 

5  Walters  v.  People,  18  111.  194 ;  s.  c.  21  111.  178. 

6  State  V.  Melogue,  9  Ind.  196  ;  Sullivan  v.  Winslow,  22  Ind.  154;  Stat.  1862, 
p.  368. 

1  Austin  V.  Swank,  9  Ind.  112. 

8  Mark  v.  State,  15  Ind.  100  ;  Norman  v.  Bellman,  16  Ind.  157. 

9  Code,  197  ;  Floyd  v.  Mosier,  1  Iowa,  513. 


424  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

he  have  one  homestead  and  remove  on  to  another  estate  as  his 
home,  he  would  thereby  lose  the  homestead  right  in  the  first.^ 
And  where  the  claimant  had  been  absent  from  her  homestead 
about  three  years,  and  had  offered  to  sell  it,  and  made  decla- 
ration that  she  did  not  intend  to  return,  it  was  held  to  be  an 
abandonment,  and  that  the  estate  had  thereby  become  subject 
to  be  levied  upon  by  creditors.^  If  a  widow  who  has  a  home- 
stead, as  survivor  of  the  owner  of  a  homestead,  sell  it,  or 
abandon  it,  she  loses  the  right  to  it.^  A  husband  would  not 
lose  his  homestead  right  in  consequence  of  his  wife  obtaining 
a  divorce  from  him,  even  if  the  custody  of  the  children  is 
committed  to  her,  or  render  it  liable  to  be  levied  on.* 

7.  In  Massachusetts,  acquiring  a  new  homestead  defeats  one 
already  existing.  But  removing  from  the  premises  for  a  tem- 
porary purpose  does  not  affect  an  existing  right  of  homestead, 
unless  a  new  one  or,  at  least,  a  new  domicil  has  been  acquired. 
Nor  does  it  seem  to  be  settled  whether  such  a  right  can  be  lost 
by  mere  abandonment.  If  it  can  be  done  at  all,  it  must  be 
done  voluntarily  and  with  that  understanding.  Removing  on 
to  other  land  of  the  owner  would  not  have  that  effect.^  No 
abandonment  of  the  premises  to  which  a  homestead  right  has 
once  attached,  will  be  sufficient  to  terminate  it,  until  a  new 
homestead  has  been  acquired  elsewhere.^  But  the  widow  may 
by  her  own  act  so  change  the  condition  of  the  estate  in  which 
she  has  a  homestead  right,  as  to  bar  herself  of  it.  Thus, 
where  she  had  a  right  to  dower  as  well  as  homestead,  and 
had  her  dower  set  out  in  the  rents  and  profits  of  one  undi- 
vided third  part  of  the  whole  of  her  husband's  estate,  under 
the  Gen.  Stat.  c.  90,  §  5,  and  then  sold  her  dower  interest, 
she  thereby  waived  her  right  of  homestead,  and  could  not 
claim  it,  having  changed  the  estate  into  a  tenancy  in  common.'^ 

1  Williams  v.  Swetland,  10  Iowa,  51 ;  Christy  v.  Dyer,  14  Iowa,  438;  Morris 
V.  Sargent,  18  Iowa,  90 ;  Davis  v.  Kelley,  14  Iowa,  523  ;  Fyffe  i'.  Beers,  18  Iowa, 
4  ;  Robl)  I'.  McBride,  28  Iowa,  386  ;  Marsliall  v.  Ruddick,  28  Iowa,  490. 

2  Dunton  v.  Woodbury,  24  Iowa,  76. 

3  Size  u.  Size,  24  Iowa,  580 ;  Orman  v.  Orman,  26  Iowa,  361. 
*  Woods  V.  Davis,  34  Iowa,  264. 

5  Gen.  Stat.  c.  104,  §  2;  Siiloway  v.  Brown,  12  Allen,  35 ;  Dulanty  v.  Pyn- 
chon,  6  Allen,  510;  Lazell  v.  Lazell,  8  Allen,  575. 

6  Woodbury  v.  Luddy,  14  Allen,  1.  ^  Bates  v.  Bates,  97  Mass.  396. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  425 

Nor  would  selling  her  right  by  a  widow,  or  leasing  the  prem- 
ises defeat  her  right  to  the  benefit  of  it.^  If  the  husband 
mortgage  the  homestead,  and  the  wife  join  in  releasing  her 
right  of  homestead  in  the  premises,  it  has  the  effect  to  sub- 
ject the  homestead  right  as  well  as  the  rest  of  the  estate  to 
the  payment  of  the  mortgage  debt.  But  it  has  no  other 
effect.^  If  a  minor  child  cease  to  live  upon  the  homestead, 
while  the  widow  continues  to  occupy  it,  he  thereby  waives 
his  possession,  though  not  his  title  or  right  to  resume  his  occu- 
pancy, and  if  an  act  of  trespass  were  done  to  the  estate  while 
he  is  thus  out  of  possession,  the  action  would  have  to  be  in 
the  name  of  the  widow,  and  such  children,  if  any,  as  were  in 
occupancy  of  it.^ 

8.  In  Michigan,  the  right  is  a  personal  one,  and  an  unmar- 
ried man,  in  order  to  lose  his  homestead,  must  do  some  act  of 
relinquishment  of  it.  And  if  married,  it  can  only  be  done  by 
a  joint  conveyance  of  himself  and  wife.* 

9.  In  Minnesota,  the  privilege,  being  a  personal  one,  may  be 
lost  by  abandonment.^  If  the  owner  remove  from  the  estate 
and  ceases  to  occupy  it  for  more  than  six  months,  he  loses  the 
right,  unless  he  files  a  declaration  in  the  register's  office  that 
he  continues  to  claim  it,  which  will  remain  in  force  for  five 
years.^  In  Mississippi,  the  husband  is  the  one  who  selects  and 
fixes  a  homestead,  and  he  may  change  it.  But  if  he  leave  it, 
while  his  wife  and  children  continue  to  occupy  it,  it  does  not 
operate  as  an  abandonment  of  the  homestead  until  he  shall 
have  acquired  a  new  one.^  In  New  Jersey,  where  a  home- 
stead has  passed  to  a  widow  for  the  benefit  of  her  and  the 
children,  no  release  or  waiver  of  the  exemption  is  valid. ^ 

10.  In  New  Hampshire,  a  temporary  absence  from  the  prem- 
ises does  not  affect  the  homestead  right.  The  leasing  of  a 
homestead  for  a  year  is  not  an  abandonment  of  the  right  of 
homestead.^     Nor  is  leaving  it  for  a  temjiorary  purpose. ^*^     So 

1  Mercier  v.  Chace,  11  Allen,  194. 

2  Swaji  V.  Stephens,  99  Mass.  9.  »  Abbott  v.  Abbott,  97  Mass.  186. 
*  Dye  V.  Mann,  10  Mich.  291 ;  McKee  v.  Wilcox,  11  Mich.  360. 

6  Folsom  V.  Carli,  5  Minn.  337 ;  Tillotson  v.  Millard,  7  Minn.  520. 
6  Stat,  at  Large,  1873,  c.  32,  Tit.  5. 

'  Thorns  V.  Thorns,  45  Miss.  276 ;  Parker  v.  Dean,  45  Miss.  423. 
8  Dig.  1868.  9  Locke  v.  Rowell,  47  N.  H.  46. 

10  Wood  V.  Lord,  51  N.  H.  454,  455. 


426  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

if  an  owner  has  begun  to  occupy  the  premises,  as  by  moving 
his  furniture  into  the  dwelling-house,  preparatory  to  remov- 
ing his  family  into  the  same,  it  was  held  that  the  right  of 
homestead  attached  thereby,  and  was  not  lost  during  the  time 
in  which  the  family  were  moving  into  the  premises.^  Nor 
would  a  separation  from  her  husband  by  the  wife,  without 
her  fault,  affect  her  right  of  homestead  in  the  premises,  nor 
to  those  he  should  acquire  during  such  separation,  if  he  lived 
thereon.  Nor  would  the  absence  of  a  husband  for  a  tempo- 
rary purpose  affect  the  wife's  right,  though  he  were  to  die 
abroad.2  Nor  does  a  widow  lose  her  right  of  homestead  by 
marrjdng  again.^  But  the  acquiring  of  a  new  homestead  is 
the  abandonment  of  a  prior  one.'^ 

10  a.  In  Nevada,  there  can  be  no  abandonment  of  a  home- 
stead except  by  a  written  declaration  signed  and  acknowl- 
edged by  the  husband  and  wife,  or  other  head  of  the  family.^ 

11.  In  New  York,  the  exemption  is  regarded  as  made  for 
the  benefit  of  the  family,  rather  than  the  householder  him- 
self. So  that  if  he  temporarily  cease  to  occupy  the  premises, 
and  store  his  goods  intending  to  resume  the  occupation,  it  is 
no  impeachment  of  the  right.^  No  release  or  waiver  of  home- 
stead is  valid  unless  it  is  in  writing  subscribed  by  the  house- 
holder, and  acknowledged  as  other  conveyances.'' 

12.  In  Ohio,  it  is  not  lost  by  leasing  the  homestead  estate, 
and  removing  to  another  part  of  the  State,  if  for  a  temporary 
purpose.^ 

13.  In  Pennsylvania,  there  may  be  a  waiver  of  this  right 
in  several  ways,  as  by  the  terms  of  the  contract  upon  which  a 
judgment  is  rendered,  not  to  insist  upon  the  exemption;  or 
the  widow  may  do  it  by  neglecting  to  claim  it  within  a  rea- 
sonable time  after  her  husband's  death,^  and  the  giving  of  a 
mortgage  upon  the  premises  is  held  to  be  a  waiver  jsro  tanto}^ 

1  Fogg  V.  Fogg,  40  N.  H.  285.  2  Mender  v.  Place,  43  N.  H.  308. 

8  Miles  V.  Miles,  46  N.  H.  261. 

*  Wood  V.  Lord,  51  N.  H.  454,  455.  »  Comp.  Laws,  1873,  §  186. 

6  Griffin  v.  Sutherland,  14  Barb.  458.  "^  4  Stat,  at  Large,  Ft.  3,  c.  260. 

8  Wetz  V.  Beard,  12  Ohio  St.  431. 

9  Davis's  Appeal,  34  Penn.  256  ;  Baskin's  Appeal,  38  Penn.  65  ;  Burk  v.  Glea- 
son, 46  Penn.  297. 

10  M'Auley's  Appeal,  35  Penn.  209 ;  Gangwere's  Appeal,  36  Penn.  466. 


CH.  IX.  §  2.]  ESTATES   BY   MARRIAGE.  427 

14.  In  Texas,  this  right  may  be  lost  by  abandonment.  But 
what  shall  be  a  sufficient  act  to  constitute  an  abandonment 
may  depend  upon  circumstances.  It  must  be  done  with  an 
intention  totally  to  relinquish  the  same,  and,  even  if  he  leave 
the  premises  with  this  intent,  he  may  change  this  intent  up 
to  the  time  that  he  acquires  a  new  homestead. ^  Thus  a  widow 
who  removed  from  the  State,  and  acquired  a  new  domicil  in 
another  State,  was  held  to  have  lost  her  homestead.^  So  if  a 
wife  without  good  cause  leave  her  husband,  and  remain  sepa- 
rated until  his  death,  she  loses  the  right.^  So  where  the  hus- 
band sold  the  estate  without  his  wife  joining  in  the  deed,  and 
both  removed  from  the  State,  and  he  died  abroad,  she  was  not 
allowed,  several  years  after,  to  return  and  claim  her  home- 
stead.^ But  renting  the  premises  temporarily  is  not  such  an 
abandonment.  Nor  would  the  death  of  the  wife  of  a  house- 
holder affect  his  right  of  homestead,  if  he  continues  to  occupy 
the  premises,  though  he  have  no  children.^  If  a  husband 
removes  his  family  from  an  established  homestead,  and  then 
abandons  them  without  providing  a  home  for  them,  the  wife 
may  resume  possession  of  the  premises  and  homestead.^  A 
removal  from  the  State  is  an  abandonment  of  a  homestead,  un- 
less it  be  for  a  temporary  purpose.  If  the  husband  gain  a  new 
domicil  and  the  wife  follows  and  accepts  it,  it  is  an  abandon- 
ment of  first  homestead.  So  any  actual  abandonment  of  the 
homestead  subjects  it  to  a  creditor's  execution.  If  the  wife 
voluntarily  join  with  her  husband  in  conveying  the  homestead, 
it  is  of  itself  an  abandonment.'^  If  a  debtor  having  a  home- 
stead convey  it  away  merely  to  keep  it  from  his  creditors, 
and  he  abandons  possession,  it  subjects  the  estate  to  levy  by 
any  of  his  creditors.^  But  no  fraudulent  representations  made 
by  the  owner  as  to  the  estate  of  homestead  can  affect  the  right 
to  it  then  existing,  if  the  wife  is  not  a  party  to  it.^ 

1  Shepherd  v.  Cassiday,  20  Texas,  30.        2  Trawick  v.  Harris,  8  Texas,  312. 
8  Earle  v.  Earle,  9  Texas,  630;   Const.  §  22. 
*  Jordan  v.  Goodman,  19  Texas,  273. 

5  Taylor  v.  Boulware,  17  Texas,  77  ;  Pryor  v.  Stone,  19  Texas,  374. 

6  Franklin  i'.  Coffee,  18  Texas,  417. 
T  Paschal's  Dig.  p.  90. 

8  Cox  ('.  Sliropshire,  2-5  Texas,  125;  Martel  v.  Somers,  26  Texas,  559. 

9  Eckhardt  v.  Schlecht,  29  Texas,  129. 


428  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

15.  In  Vermont,  no  one  can  have  but  one  homestead,  so 
that  by  acquiring  a  new  one  he  loses  the  old  one.^  And 
something  answering  to  a  personal  occupancy  is  necessary  to 
retain  the  homestead  right,  though  a  temporary  absence  will 
not  defeat  it.  But  a  change  of  the  residence  or  home  of  the 
family  would. ^ 

16.  In  Wisconsin,  one  does  not  lose  his  homestead  by  leas- 
ing it  to  another,  temporarily,  and  absenting  himself  from  the 
same.  But  if  he  voluntarily  removes  from  it  and  takes  up  a  new 
residence,  not  for  a  temporary  purpose,  such  as  repairing  his 
former  one,  but  for  the  accommodation  of  his  business,  it 
would  seem  that  he  would  thereby  lose  his  right  of  homestead, 
though  this  is  questioned  under  the  statute  of  ISSS.-'^  If  a 
widow  marry  again,  her  right  of  homestead  ceases,  but  she 
does  not  thereby  affect  her  right  to  recover  the  intermediate 
rents  and  profits  from  the  death  of  her  husband,  if  she  has 
been  kept  out  of  possession.*  She  does  not  lose  her  home- 
stead as  having  abandoned  it,  if  she  is  driven  from  her  home 
by  the  cruelty  of  her  husband.^  Nor  would  it  be  deemed  an 
abandonment  if  father  and  mother  sell  a  homestead  to  a  son  to 
induce  him  to  live  with  them  and  support  them.  It  would 
be  a  mode  of  carrying  on  the  estate.^ 

1  Howe  V.  Adams,  28  Vt.  544. 

2  Davis  V.  Andrews,  30  Vt.  678 ;  West  Eiver  Bank  v.  Gale,  42  Vt.  27;  Lamb 
V.  Mason,  45  Vt.  502. 

3  Estate  of  Phelan,  16  Wis.  76 ;  Herrick  v.  Graves,  16  Wis.  166. 

*  Anderson  v.  Coburn,  27  Wis.  567.  «  Barker  v.  Dayton,  28  Wis.  867. 

6  Murphy  v.  Cranch,  24  Wis.  367. 


CH.  IX.  §  2.]  ESTATES   BY  MARRIAGE.  429 


DIVISION"  VIII. 

OF  PKOCEDURE    IN    RESPECT    TO    HOMESTEAD    RIGHTS,    AND 
OF   CHANGE   IN   CONDITION   OF   THE   ESTATE. 

1.  Cases  of  procedure  in  California. 

2.  Of  procedure  in  Iowa. 

3.  Of  procedure  in  Massaclmsetts. 

4.  Of  procedure  in  Michigan. 

5.  Of  procedure  in  Texas. 

6.  Effect  of  changing  country  into  city  lots. 

1.  In  enforcing  homestead  rights,  various  questions  of 
practice  have  arisen  in  the  courts  as  to  the  mode  of  procedure, 
and  who  must  be  made  parties  to  the  same.  Thus,  in  CaH- 
fornia,  both  husband  and  wife,  if  living,  must  join  in  asserting 
the  right  of  homestead,  nor  can  a  binding  decision  be  made 
when  only  one  of  them  is  a  party. ^  So  in  a  suit  to  foreclose 
a  mortgage,  both  should  be  made  parties,  if  the  defendant  sets 
up  the  homestead  right.  And  without  this,  no  question  can 
be  conclusively  settled.^  A  judgment  against  the  husband 
alone,  the  wife  not  having  been  made  party  to  the  suit,  does 
not  bind  either  of  them  as  to  the  right  of  homestead.^  Nor 
would  the  right  of  homestead  be  affected  by  a  decree  of  fore- 
closure upon  a  mortgage,  made  by  the  husband  alone,  when  the 
proceedings  are  against  him  only.^  If  a  divorce  be  granted 
to  a  wife,  she  may  have  a  homestead  in  the  common  property 
belonging  to  her  and  her  husband,  and  have  it  set  off  by 
partition.^ 

2.  In  Iowa,  if  a  mortgagor  would  hisist  upon  his  homestead 
rights  against  a  mortgage,  he  must  do  it  while  the  suit  to  fore- 
close is  pending.  If  he  neglects  to  set  it  up,  and  the  estate  is 
sold  upon  a  decree  of  court,  it  is  too  late  to  insist  upon  it 
against  the  jiurchaser  at  such  a  sale.^ 

1  Cook  V.  Klink,  8  Cal.  347  ;  Marks  v.  Marsh,  9  Cal.  97. 

'^  Marks  v.  Marsh,  sup. ;  Moss  v.  Warner,  10  Cal.  297. 

3  Revalk  i\  Kraenier,  8  Cal.  71 ;  Marks  v.  Marsh,  sup. 

*  Cook  V.  Klink,  sup. 

5  Gimmy  v.  Doane,  22  Cal.  635.  6  Haynes  v.  Meek,  14  Iowa,  320. 


430  LAW    OF   REAL   PROPERTY.  [bOOK   I. 

3.  In  ]\Iassachiisetts,  a  party  having  a  right  of  homestead 
in  property  held  in  common  with  others,  may  have  partition 
of  the  same  like  other  tenants  in  common,^  except  that  the 
homestead  is  set  out  by  value,  without. regard  to  the  propor- 
tion it  bears  to  the  whole  estate,  and  this  applies  Avhere  it  is 
to  be  carved  out  of  a  larger  estate.  Nor  does  it  make  any 
difference  in  this  respect  that  the  estate  of  homestead  is  for 
life  only .2  If  one  who  has  come  into  possession  of  the  estate 
of  the  husband,  which  includes  more  than  the  homestead, 
keeps  the  owner  of  the  homestead  out  of  possession,  the  latter 
may  have  trespass  against  him,  upon  the  same  principle  that 
one  co-tenant  may  have  trespass  against  a  co-tenant  for  ousting 
him  from  the  common  estate.  And  the  same  rule  would  ap- 
ply if  the  owner  of  a  homestead  which  is  a  part  of  a  larger 
estate,  being  in  possession,  keeps  out  the  owner  of  the  sur- 
plus of  such  estate.^  If  the  holder  of  a  mortgage  not  subject 
to  a  homestead  right  enter  upon  the  premises,  and  hold  the 
same,  and  a  second  mortgagee,  whose  mortgage  is  subject  to 
such  right,  offer  to  redeem  from  the  first,  he  has  a  right  to 
require  the  first  mortgagee  to  account  for  the  rents  and  profits 
of  the  entire  estate  while  in  his  possession,  without  regarding 
the  homestead  rights  of  a  stranger.*  If  a  wife  be  sued  for 
land  by  a  creditor  of  the  husband,  who  has  set  it  off  upon  an 
execution,  upon  the  ground  that  he  had  fraudulently  con- 
ve^^ed  it  to  her  to  delay  his  creditors,  she  may  set  up,  in  bar 
of  an  absolute  recover}^  a  right  of  homestead,  and  a  special 
judgment  will  be  rendered  in  accordance  with  the  fact.^ 

3  a.  A  homestead  right  is  such  a  freehold  estate  as  will 
avail  the  tenant  in  defence  to  a  writ  of  entry.  And  if  it  cover 
the  entire  premises  sued  for,  it  will  defeat  the  action.  But  if 
it  fall  short  of  this  in  value  or  extent,  and  there  is  no  dis- 
claimer as  to  the  residue,  the  demandant  may  recover,  but 
his  judgment  will  be  limited  to  what  is  not  covered  by  the 
homestead  right.^  But  in  New  Hampshire,  such  right  will 
not  bar  a  writ  of  entry  until  the  same  has  been  set  off  and 
assigned.' 

1  Gen.  Stat.  c.  104.  *  Silloway  v.  Brown,  12  Allen,  35. 

3  SilloWay  v.  Brown,  sup.  *  Richardson  v.  Wallis,  5  Allen,  78. 

6  Castle  V.  Palmer,  6  Allen,  404  ;  Stebbins  v.  Miller,  12  Allen,  597. 
6  Swan  V.  Stephens,  99  Mass.  10.  "^  Barney  v.  Leeds,  51  N.  H.  253. 


CH.  IX.  §  2,]  ESTATES   BY   MARRIAGE.  431 

4.  In  Michigan,  a  husband  was  in  possession  of  premises 
under  a  contract  of  purchase,  and  surrendered  the  contract 
and  claim  to  the  land.  It  was  held,  that  the  wife  might  have 
a  bill  in  her  own  name,  for  a  specific  performance  of  the  con- 
tract. And  the  decree  in  such  case  would  be  for  a  convey- 
ance to  the  husband,  subject  to  the  wife's  lien  for  whatever 
sum  she  was  obliged  to  pay  for  fulfilling  the  contract.  Nor 
could  a  purchaser  from  the  original  vendor  take  advantage  as 
a  purchaser  without  notice,  since  her  being  in  possession  was 
enough  to  put  him  upon  inquiry,  by  what  right  she  held.^ 

5.  In  Texas,  a  married  woman  is  recognized  as  competent 
to  appear,  and  litigate  her  rights  in  court.  But  where  to  a 
process  against  her  and  her  husband,  involving  a  question 
of  selling  the  estate  in  which  the  homestead  interest  of  the 
parties  existed,  she  neglected  to  appear,  and  her  husband 
forbore  to  insist  upon  the  right,  it  was  held  that  she  could 
not  set  up  a  claim  of  homestead  against  such  judgment.^  In 
Vermont,  husband  and  wife  were  tenants  in  common,  and  he 
mortgaged  his  estate  without  joining  her.  After  his  death  it 
was  decreed  that  her  land  should  be  divided  from  his  by  par- 
tition, that  her  homestead  should  be  set  out  of  his  share  of 
the  estate  irrespective  of  hers,  and  that  the  mortgage  should 
foreclose  upon  the  balance  of  his  estate.^ 

6.  The  distinction  which  is  made  in  some  of  the  States  be- 
tween city  lots  and  those  used  for  agricultural  purposes,  in 
fixing  the  quantity  of  land  to  be  exempted  as  homestead,  has 
led  to  a  consideration  of  the  effect  of  extending  the  corporate 
bounds  of  a  city  or  town,  so  as  to  embrace  homesteads  already 
acquired  in  agricultural  lands. 

In  Iowa,  it  has  been  held  that  such  extension  does  not  af- 
fect existing  homestead  rights,  unless  thereby  brought  within 
the  part  of  the  city  or  town  which  has  been  laid  out  into 
streets,  alleys,  and  lots.*  In  Texas,  it  was  held  that  such  a 
change  from  country  to  town  changed  the  character  of  the 
homestead  so  as  to  conform  to  the  limits  of  a  town  or  city 

1  McKee  i'.  Wilcox,  11  Mich.  358. 

2  Baxter  v.  Dear,  24  Texas,  17. 

3  McClary  v.  Bixby,  36  Vt.  254,  260. 
*  Fiiiley  v.  Dietrick,  12  Iowa,  516. 


432  LAW   OF   REAL   PROPERTY.  [BOOK   L 

property.^  And  a  similar  doctrine  is  settled  in  Wisconsin.^ 
But  by  statute  of  1860,  though  the  value  of  the  town  or  city 
lots  in  Texas  exempt  as  homesteads  is  limited  to  two  thousand 
dollars,  no  subsequent  increase  in  the  value  thereof,  by  reason 
of  improvements  or  otherwise,  will  subject  the  same  to  a 
forced  sale.^ 

1  Taylor  v.  Boulware,  17  Texas,  77.  2  Bull  v.  Conroe,  13  Wis  233. 

5  Laws,  1860,  c.  38 ;  Bassett  v.  Messner,  30  Texas,  001. 


CH.  X.  §  1.]  ESTATES   FOR   YEARS,  433 


Sect. 

1. 

Sect. 

2. 

Sect. 

3. 

Sect. 

4. 

Sect. 

5. 

Sect. 

6. 

Sect. 

7. 

Sect. 

8. 

Sect. 

9. 

Sect. 

10. 

Sect. 

11. 

CHAPTER  X. 

ESTATES   FOR   YEAES. 

Nature  and  History  of  Estates  for  Years. 

Modes  of  Creating  Estates  for  Years. 

Of  Conditions  in  Leases. 

Of  Covenants  in  Leases. 

Of  Assignment  and  Sub-tenancy. 

Of  Eviction,  Destruction,  and  Use  of  Premises. 

Of  Surrender  and  Merger. 

Lessee  Estopped  to  deny  Lessor's  Title. 

Of  Disclaimer  of  Lessor's  Title. 

Letting  Land  upon  Shares. 

Of  Descent  and  Devise  of  Terms. 


SECTION  I. 

NATURE   AND   HISTORY  OF   ESTATES  FOR  YEAES. 

1.  History  of  terms  for  years. 

2.  What  makes  an  estate  for  years. 

3.  How  such  estates  are  created. 

4.  What  is  iniphed  by  term. 

5.  Terms  may  be  created  infuturo. 

6.  Terms  must  have  a  certain  beginning  and  end. 

7.  Tenant  for  years  is  not  seised. 

8.  Of  Interesse  termini  and  leases  by  uses. 

9.  Of  entry  before  bringing  ejectment. 

10.  How  far  possession  necessary  to  perfect  a  lease. 

11.  Lessee  liable  for  rent  before  possession  taken. 

1.  Next  in  importance,  in  the  admeasurement  of  estates, 
to  those  of  freehold,  are  those  for  years.  But  so  far  are  these 
from  being  derived  from  the  feudal  law,  or  known  as  estates 
to  that  system,  that  the  tenant,  at  first,  was  not  regarded  as 
the  owner  of  any  interest  in  land  which  he  could  claim  as 
such,  but  depended  upon  the  personal  agreement  of  the  free- 
VOL.  I.  28 


43-1  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

holder  for  his  right  to  occupy  the  same.  The  account  given 
by  a  modern  writer  upon  conveyancing,  is,  that  leases  for  years, 
at  will,  or  at  sufferance,  w^ere  originally  granted  to  mere  farm- 
ers or  husbandmen,  who,  every  year,  rendered  some  equivalent 
in  money,  provisions,  or  other  rent  to  the  lessors  or  landlords. 
But  the  latter,  in  order  to  encourage  them  to  manure  or  cul- 
tivate the  ground,  gave  them  a  sort  of  permanent  interest  for 
a  limited  period,  founded  upon  a  contract  express  or  implied, 
which  was  not  determinable  at  their  will,  but  which  should 
endure  for  a  time  certain.  Their  possession,  nevertheless, 
was  esteemed  of  so  little  consequence  that  they  were  consid- 
ered as  bailiffs  or  servants  of  the  lord,  holding  possession  of 
the  land  jure  alieno  and  not  jure  proprio^  who  were  to  receive, 
and  had  contracted  to  account  for,  the  profits  at  a  settled 
price,  rather  than  as  having  any  property  of  their  own.  About 
the  time  of  Edward  I.,  es.tates  for  years  seem  to  have  become 
of  importance,  and  to  have  been  considered,  after  entry  made, 
as  actual  interests  in  the  land  vested  in  the  lessee.^  It  will 
be  recollected  that  prior  to  the  statute  of  quia  emptor es  (18 
Edw.  L),  the  owners  of  lands  in  fee  could  not  freely  alien  the 
same,  but  resorted  to  the  custom  of  subinfeudation,  as  it  was 
called,  by  which,  while  they  continued  to  hold  of  their  supe- 
rior lord,  they  created  a  tenure  between  themselves  and  the 
tenants  whom  they  permitted  to  occupy  their  lands,  upon  such 
services  as  they  saw  fit  to  prescribe,  which  were  payable  to 
themselves.  But,  unless  the  owner  of  the  feud  created  a  free- 
hold interest  in  the  one  to  whom  he  gave  the 'right  of  occu- 
pation, it  was  not  considered  in  law  as  an  estate,  but  a  mere 
agreement  by  which,  if  the  occupant  was  deprived  of  the 
possession  of  the  land,  his  only  remedy  was  by  an  action  for 
a  breach  of  such  agreement.  There  is  an  act  of  6  Edw.  I. 
c.  11,  made  to  protect  such  tenants  from  being  ousted  from 
their  possession  by  actions  fraudulently  commenced  in  the 
names  of  third  persons,  nominally  against  the  owners  of  the 
land  under  whom  the  tenants  held.  And  in  that  statute  it  is 
said,  "  if  any  man  lease  his  tenement  in  the  city  of  London 
for  term  of  years,"  &c.,  by  which  it  would  seem,  that  the 
same  form  of  expression  was  then  in  familiar  use  which  is 

^  1  Powell,  Ed.  Wood,  Conv.  pp.  iv-vi.     See  also  Maine,  Anc.  L.  275. 


CH.  X.  §  1.]  ESTATES    FOR    YEARS,  435 

adopted  at  this  day.  Still,  it  seems  that,  if  deprived  of  his 
possession,  the  tenant  had  no  mode  of  regaining  it  by  action, 
as  one  having  an  estate  in  land  might.  This  was  only  accom- 
plished by  a  succession  of  remedial  acts.  A  form  of  action 
of  covenant  was  the  first  devised,  whereby  the  tenant  might 
demand  his  term  as  well  as  damages,  but  could  only 
*  maintain  it  against  his  immediate  covenantor.  In  [*291] 
the  time  of  Henry  III.,  the  writ  of  Quare  ejecit  infra 
terminum  was  framed,  which  lay  against  any  one  in  possession 
of  the  land,  and  upon  a  judgment  in  the  termor's  favor,  he 
recovered  possession  of  the  land  itself.  But  this  writ  did  not 
reach  a  case  where  a  stranger  had  entered  and  tortiously 
ousted  the  tenant,  and  in  such  cases,  his  only  remedy  was  to 
sue  for  possession  in  the  name  of  his  lessor.  In  the  time  of 
Edw.  III.  the  writ  of  ejectment,  substantially  like  that  now  in 
use,  was  invented,  and  so  shaped  as.  to  enable  the  tenant  of  a 
term  to  recover  it,  when  deprived  of  the  possession  of  the 
premises  leased.  And  in  this  way,  at  last,  tenants  for  years 
were  placed  upon  the  same  level  with  freeholders,  in  regard 
to  the  security  of  their  estates,  and  their  remedy  for  recover- 
ing them  if  dispossessed  thereof.^  As  an  estate  in  lands, 
however,  a  tenancy  for  years  has  long  been  familiar  to  the 
common  law,  and,  as  a  contract,  seems  to  have  been  well 
known  as  early  as  the  reign  of  Edward  I.  from  the  language 
of  the  statute  above  referred  to,  though  it  is  still  held  to  be 
not  a  freehold  estate  but  a  chattel  interest.^ 

1  a.  But  it  was  not  before  the  time  of  Henry  VII.  that  the 
plaintiff  in  ejectment  recovered  the  term.  At  and  after  that 
time  he  recovered  this,  and  with  it  possession  of  the  land,  if 
his  term  had  not  expired  ;  and,  if  it  had  elapsed,  he  recovered 
damages.  When  it  became  established  that  the  term  should 
be  recovered,  "  the  ejectment  was  licked  into  the  form  of  a 
real  action,  the  proceeding  was  in  rem,  and  the  thing  itself, 
the  term,  only  was  recovered,  and  nominal  damages,  but  not 
the  mesne  profits."^    Ejectment  is  the  form  of  action  now 

1  Smith,  Land.  &  Ten.  8-12 ;  1  Reeves,  Hist.  Eng.  Law.  341 ;  Bacon,  Abr. 
Leases ;  Doe  v.  Errington,  1  A.  &  E.  750  ;  Adams,  Eject.  8. 

2  Com.  Dig.  Land.  &  Ten.  5. 

8  Goodtitle  v.  Tombs,  8  Wils.  120 ;  Campbell  v.  Loader,  3  H.  &  C.  527,  n. 


436  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

retained  in  use  in  England  under  the  statute  of  3  &  4  Wm. 
IV.  c.  7,  §  3G,  which  abolished  all  other  forms  of  real  actions 
except  dower. ^  It  is  in  general  use  in  some  form  in  this 
country,  and  by  it  the  plaintiff  recovers,  if  at  all,  upon  the 
strength  of  his  own  title,  and  not  upon  the  weakness  of  that 
of  the  tenant,  since  possession  is  deemed  conclusive  evidence 
of  title  as  to  all  persons  except  such  as  can  show  a  better 
one.^ 

2.  Estates  for  years  embrace  such  as  are  for  a  single  year, 
or  for  a  period  still  less  if  definite  and  ascertained,  as  a  term 
for  a  fixed  number  of  weeks  or  months,  as  well  as  for  any 
definite  number  of  years,  however  great.^  This  was  held  in 
respect  to  a  parol  letting  of  premises  for  the  term  of  one  year, 
although  the  rent  was  payable  in  grain  to  be  raised  upon  a 
certain  parcel  of  the  premises  during  that  year.^ 

3.  An  estate  for  years,  as  understood  in  this  chapter,  is  one 
that  is  created  by  a  contract,  technically  called  a  lease,  whereby 
one  man,  called  the  lessor,  lets  to  another,  called  the  lessee, 
the  possession  of  lands  or  tenements  for  a  term  of  time  fixed 
and  agreed  upon  by  the  parties  to  the  same.^  By  this  some- 
thing more  is  implied  than  a  mere  grant  of  a  certain  interest 
in  land  ;  it  involves  a  contract,  more  or  less  explicit,  as  to  the 
terms  and  conditions  upon  which  the  same  is  to  be  held  and 
managed ;  and  this  contract,  in  some  form,  is  incident  to  every 
proper  leasehold  estate.  Nor  is  it,  perhaps,  easy  to  describe 
more  definitely  what  the  lessee  acquires  by  this  lease,  since, 
being  so  much  the  creature  of  contract,  there  are  not,  as  in 
other  estates,  uniform  incidents  belonging  to  terms  for  3-ears, 
which,  necessarily  and  as  a  matter  of  course,  pass  with  them. 
The  lessee  does  not  own  the  soil  and  freehold,  and  has  a  lim- 
ited property  only  in  it.  But  within  these  limits  he  is  the 
owner  of  the  possession  and  profits  of  it,  and  of  all  the  use 
that  can  be  made  of  it  during  the  continuance  of  his  terra. 
Thus,  where  one  hired  a  store  upon  the  outer  wall  of  which 

1  Ante,  p.  *230,  note.  '  Hague  v.  Porter,  45  111.  318. 

3  Burton,  Eeal  Prop.  §  8G3;  2  Flint.  Real  Prop.  200;   Smith,  Land.  &  Ten. 
(ed.  1856)  14;  Brown  v.  Bragg,  22  Ind.  122. 
*  Gould  V.  School  District,  8  Minn.  431. 
5  Smitli,  Land.  &  Ten.  18 ;  Com.  Land.  &  Ten.  4. 


CH.  X.  §  1.]  ESTATES    FOR    YEARS.  437 

persons  posted  advertisements  and  paid  for  the  privilege,  it  was 
held  to  be  his  perquisite  and  not  that  of  the  lessor.  The  les- 
see may  use  such  wall  to  hang  his  sign  or  an  awning  upon, 
to  the  exclusion  of  the  lessor.^  What  these  limits  are  may  be 
fixed  by  the  agreement  of  the  parties,  or  are  implied  by  law 
from  the  nature  of  the  estate.  Within  these  limits,  the  es- 
tate of  a  tenant  for  years  ranks  with  that  of  a  freeholder  in 
regard  to  stabilit}^  of  enjoyment.^  The  use  and  products  of 
the  premises  are  his  as  owner.  Thus  a  tenant,  whether  for 
life,  years,  or  a  single  year,  may  work  an  open  mine  on  the 
premises,  or  a  quarry,  and  the  products  of  the  mine  or  quarry 
are  a  part  of  the  profits  of  the  estate  to  which  he  is  entitled.^ 
So  he  may  erect  buildings  upon  the  premises,  and  remove 
them  while  he  retains  possession  of  them,  and  cannot  charge 
the  cost  of  their  erection  to  the  landlord.''  So  he  may  attach 
fixtures  to  the  premises  and  remove  them  before  giving  up 
possession  at  the  end  of  the  term.  It  seems  he  may  exercise 
this  right  until  he  yields  possession,  although  the  term  may 
have  expired  ;  and  if  the  term  be  nncertain  in  duration,  and 
is  determined  without  his  act,  the  tenant  may  have  a  reason- 
able time  thereafter  in  which  to  remove  them.  But  these  are 
exceptions  to  the  general  rule  b}'  which  the  tenant  forfeits 
these  fixtures  if  he  do  not  remove  them  during  the  term,  for, 
being  then  a  part  of  the  premises,  his  ownership  ceases  as  to 
all  alike. ^  In  other  words,  he  has  an  estate  in  the  demised 
premises  for  the  term  prescribed  in  his  lease,  and  if  deprived 
of  the  possession  and  enjoyment  thereof,  the  law  sujjplies  a 
remedy  by  which  he  may  regain  these  specifically,  instead  of 
recovering  damages  only  for  the  violation  of  a  contract  right.^ 
In  some  cases,  a  lease  may  be  presumed  to  have  been  made 
from  long  possession  of  lands,  as  other  deeds  and  grants  are 

1  Riddle  v.  Littlefield,  53  N.  H.  510.  "-  1  Piatt,  Leases,  5. 

8  Freer  v.  Stotenbur,  30  Barb.  642.       4  Kutter  v.  Smith,  2  Wallace,  U.  S.  497. 

s  Davis  V.  Buffuni,  51  Me.  162  ;  Leader  v.  Homewood,  5  C.  B.  n.  s.  553 ; 
Weeton  v.  Woodcock,  7  M.  &  W.  19;  Stansfeld  v.  Mayor,  &c.,  4  C.  B.  n.  s.  131, 
135,  and  note  to  Am.  ed.  of  Am.  Cases  ;  Heap  v.  Barton,  12  C.  B.  274  ;  Preston 
V.  Briggs,  10  Vt.  124 ;  Mason  v.  Fenn,  13  III.  529  ;  Dubois  v.  Kelly,  10  Barb.  406 ; 
Dingley  v.  Buffum,  57  Me.  382. 

6  Co.  Lit.  345  a;  Bouvier,  "Estate  for  Years";  Stearns,  R.  A.  53;  ante, 
pl.l 


438  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

sometimes  presumed  under  similar  circumstances.^  It 
[*292]  is  customary  to  *  provide  in  the  lease,  by  stipulation, 

that  the  lessee  shall  pay  to  the  lessor  money  or  other 
consideration  in  the  way  of  rent  or  return,  for  the  use  of  the 
premises.^  But  the  reservation  of  rent  is  not  essential  to  the 
validity  of  a  tenancy  for  years  by  lease.^ 

4.  As  an  estate  for  years,  as  above  explained,  necessarily 
implies  a  certain  and  definite  period  for  which  possession  is  to 
be  held,  it  has  acquired  a  designation  proper  to  this  charac- 
ter, namely,  that  of  a  term^  derived  from  terminus,  signifying 
that  it  is  bounded  and  precisely  determined,  having  a  certain 
bepinninof  and  a  certain  end.*  And  a  lease  for  years  from  the 
first  day  of  July  begins  the  term  on  the  second  day.*^  But  as 
this  word  term  may  express  not  only  the  duration  of  the  in- 
terest of  the  lessee  in  the  lauds  leased,  but  also  the  interest 
itself,  it  may  often  be  so  used  that  this  last  shall  expire  before 
the  number  of  years  mentioned  in  the  lease.^  And  whether 
the  one  sense  or  the  other  is  to  be  attached  to  the  form  of 
expression  depends  upon  the  construction  of  the  instrument 
containing  it.  Thus  the  case  put  by  Coke,  in  the  passage 
cited,"  is  of  a  lease  for  twenty-one  years,  and  afterwards  a 
second  lease  to  begin  at  the  expiration  of  the  term  aforesaid 
of  twenty-one  years.  If  the  first  lessee  surrenders  his  estate, 
the  second  lease  would  take  effect  at  once.  But  if  the  second 
lease  had  been  from  the  expiration  of  the  twenty-one  years 
aforesaid,  it  would  have  to  wait  the  efiiuxion  of  the  wdiole  term 
mentioned.  A  case  similar  in  effect  is  put  in  Sheppard's 
Touchstone,^  which  is  cited  and  commented  on  by  Lord 
Mansfield,  who  says,  "  the  word  term  may  signify  the  time 

1  Carver  v.  Jackson,  4  Pet.  84.  A  more  expressive  term  perhaps  might  be  "  a 
leasehold  estate,"  or  "  a  tenancy  for  ye.ars,"  as  it  is  not  intended  to  embrace,  in 
this  cliapter,  estates  for  years  created  by  way  of  particular  estates  in  case  of 
remainders  or  executory  devises,  which  are  not  created  by  a  letting  and  hiring, 
but  by  grant  or  devise. 

•i  Allen  V.  Lambden,  2  Md.  279. 

3  Failing  v.  Schenck,3  Hill,  344;"State  v.  Page,  1  Speers,  S.  C.  408;  Knight's 
case,  5  Rep.  55  a  ;  1  Piatt,  Leases,  9. 

4  2  Flint.  Real  Prop.  20?.;  Wnis.  Real  Prop.  (Rawle's  ed.)  328. 

5  Atkins  V.  Sleeper,  7  Allen,  487. 

6  Burton,  Real  Prop.  §  835 ;  Co.  Lit.  45  b.  ''  Co.  Lit.  45  b. 
8  Sheppard,  Touchst.  274. 


CH.  X.  §  1.]  ESTATES   FOR   YEARS.  439 

as  well  as  the  interest,  for  then  it  becomes  merely  a  question 
of  construction,  which  sense  the  word  ought  to  be  used  in."  ^ 
And  where  a  lease  was  made  to  A  B  for  a  year,  with  liberty 
in  the  lessee  to  occupy  as  long  as  he  chose,  and  a  surety  be- 
came responsible  with  him  for  the  rent,  it  was  held  that  if  the 
tenant  continued  to  occuj)}^  after  the  year,  it  would  be  at 
the  rate  and  upon  the  terms  originally  agreed  upon,  but  that 
the  surety's  responsibility,  unless  renewed,  continued  only 
during  the  first  term  of  one  year? 

5.  A  term  for  years,  it  should  be  remembered,  may 
be  created  *  to  take  effect  at  a  future  date,  since  it  [*293] 
affects  the  possession  only  and  not  the  seisin  of  the 
lands.  Nor  is  there  any  limit  within  which  the  term  must 
take  effect,  in  order  to  be  valid,  provided  the  period  do  not 
reach  that  which  constitutes  what  the  law  calls  a  'perpetuity^ 
that,  namely,  of  a  life  or  lives  in  being,  and  twenty-one  years 
and  a  fraction  of  a  year  afterwards.^  Under  this  limitation, 
it  has  been  held  that  a  covenant  in  a  lease  for  its  renewal  in- 
definitely, at  the  option  of  the  lessee,  is  void  within  the  doc- 
trine of  perpetuity,  and  against  the  policy  of  the  law.*  But 
as  the  title  and  estate  of  such  lessee  is  not  consummate  until 
he  has  taken  possession  under  his  lease,  the  interest  which  he 
has  in  the  same,  prior  to  such  consummation,  is  called  an 
inter en^e  termini.^  But  in  Ohio  the  execution  and  delivery  of 
a  lease  perfects  the  title  in  the  lessee  without  an  actual  en- 
try.^ Although  a  lease  is  said  generally  to  take  effect  from 
the  time  of  its  making,  it  is  apprehended  that  the  time  at 
which  only  it  takes  effect  is  when  it  is  delivered.  It  is  unim- 
portant when  it  was  written,  and  it  is  comj)etent  to  show,  by 
parol,  when  it  was  delivered,  although  no  date,  or  a  different 

1  Wright  V.  Cartwright,  1  Burr.  284  ;  Evans  v.  Vaughan,  4  B.  &  C.  261 ;  where 
under  a  power  to  lease  for  years,  determinable  on  three  lives,  the  lease  was  for 
the  three  lives  with  a  covenant  of  quiet  enjoyment  during  said  term,  it  was  held 
to  mean  during  the  whole  period  of  the  three  lives. 

2  Brewery.  Thorp,  35  Ala.  11. 

3  Burton,  Real  Prop.  §  836  ;  Sand.  Uses,  199  ;  Wms.  Real  Prop.  328 ;  Cadell 
V.  Palmer,  10  Bing.  140  ;  Field  v.  Howell,  6  Ga.  423 ;  Whitney  v.  Allaire,  1  Comst. 
311  ;  Wild  r.  Traip,  14  Gray,  333. 

*  Morrison  v.  Rossignol,  5  Gal.  64. 

5  2  Flint.  Real  Prop.  204,  205;  Wms.  Real  Prop.  329  ;  Smith,  Land.  &  Ten.  13. 

6  Walk.  Intn;<l.  278. 


t- 


440  LAW   OP  REAL   PROPERTY.  [BOOK  I. 

one  from  that  of  its  actual  delivery,  was  inserted  in  the  in- 
denture.^ And  though  the  purpose  of  the  habendum  is  to  fix, 
for  one  thing,  the  time  from  which  the  duration  of  the  term 
of  the  holding  under  the  lease  is  to  he  reckoned,  yet  where 
it  professes  to  do  this  by  a  reference  to  the  making  of  the 
lease,  the  true  time  may  be  shown  by  parol.  Thus,  where  a 
lease  purported  to  bear  date  March,  1783,  habendum  from 
"  March  last  past "  for  thirty-five  years,  it  was  held  compe- 
tent to  show  by  parol  that  the  lease  was  not  executed  until 
after  March,  1783,  and  consequently  the  habendum  was  from 
that  year  and  not  1782.^  But  wherie  the  holding  is  to  be 
"  from  the  day  of  the  date,"  its  duration  will  be  measured 
from  that  day  as  written,  and  not  from  the  day  of  its  execu- 
tion, if  these  are  in  fact  variant.^  But  if  the  day  named  as 
the  commencement  of  the  holding,  or  of  the  term,  be  anterior 

to  the  date  and  actual  execution  of  the  lease,  no  in- 
[*294]  terest  thereby  passes  to  the  *  lessee  until  the  actual 

execution  and  delivery  of  the  lease,  the  purpose  of 
the  habendum  being  to  mark  the  duration  of  the  lessee's  in- 
terest.* Accordingly,  it  was  held  in  respect  to  a  lease  made 
and  dated  in  July,  1851,  demising  the  ^Ji'omises  for  fourteen 
years  from  December,  1849,  with  a  right  to  determine  it  at 
the  expiration  of  seven  years,  that  this  term  of  seven  years 
was  to  be  reckoned  from  1849.^  If  a  lease  be  made  for  such 
a  time,/rom  such  a  day,  the  day  named  is  to  be  excluded  in 
the  computation  of  the  time.  But  if  it  be  from  the  making 
of  the  lease,  ov  from  an  act  done,  the  day  on  which  it  is  done 
is  to  be  included.  If  it  be  from  the  day  of  the  act  done,  the 
day  is  to  be  excluded.^ 

6.  It  seems  to  be  regarded  as  essential  to  a  good  lease  for 
years  that  it  should  be  either  for  a  certain  period,  measured 

1  Hall  V.  Cazenove,  4  East,  481 ;  Trustees  v.  Robinson,  Wright  (Ohio),  436  ; 
Stone  V.  Bale,  3  Lev.  348 ;  Co.  Lit.  46  b. ;  Jackson  v.  Schoonmaker,  2  Johns. 
230 ;  Batchelder  i;.  Dean,  16  N.  H.  268. 

2  Steele  o.  Mart,  4  B.  &  C.  273  ;  Co.  Lit.  46  b. 

3  Smith,  Land.  &  Ten.  83  n. ;  Styles  v.  Wardle,  4  B.  &  C.  908 ;  Doe  v.  Day, 
10  East,  427  ;  Co.  Lit.  46  b. 

4  Shaw  V.  Kay,  1  Exch.  412;  Wybird  v.  Tuck,  1  Bos.  &  P.  458;  Mayn  v. 
Beak,  Cro.  Eliz.  515. 

5  Bird  V.  Baker,  1  Ellis  &  E.  12.  6  Atkins  v.  Sleeper,  7  Allen,  488. 


CH.  X.  §  1.]  ESTATES   FOR   YEARS.  441 

by  years,  months,  or  the  like,  or  for  a  period  uncertain  only 
from  the  circumstance  that  it  may  be  determined  before  its 
natural  expiration  by  the  happening  of  some  event,  or  that  it 
be  for  a  purpose  which,  of  itself,  serves  to  ascertain  the  length 
of  time  for  which  the  premises  are  to  be  held.  Thus  Littleton 
says,  "Tenant  for  term  of  years  is  where  a  man  letteth  lands 
or  tenements  to  another  for  term  of  certain  years."  ^  And  the 
illustrations  given  by  Coke  are,  if  a  man  shall  make  a  lease  to 
J.  S.  for  so  many  years  as  J.  N.  shall  name,  it  is  a  good  one, 
for,  when  J.  N.  has  named  the  number  of  years,  the  duration 
of  the  term  becomes  fixed.  If  the  lease  be  to  J.  S.  for  twenty- 
one  years,  if  he  live  so  long,  it  is  a  good  one.  But  a  lease  by 
a  parson  for  so  many  years  as  he  shall  be  parson  of  Dale,  or  so 
many  years  as  he  shall  live,  would  be  not  only  for  an  uncertain 
time,  but  it  never  could  be  made  certain  so  as  to  be  valid  as  a 
term.2  And  though  it  might  be  good  as  a  freehold  estate,  if 
properly  made  by  deed,  it  could  not  be  good  as  a  term  under 
a  lease.  But  a  devise  to  A  during  his  minority  would  be  good, 
as  it  is  susceptible  of  being  ascertained  in  respect  to  its  dura- 
tion.^ So  upon  the  principle  that,  id  certum  est  quod  eertum 
reddi  potest,  a  lease  for  seven  or  fourteen  years  will  be  good 
as  one  for  seven  at  least,  and  for  fourteen  as  soon  as  the  lessee 
shall  so  elect.^  And  if  a  lease  be  to  one  for  a  year,  with  a 
privilege  of  holding  for  three  years,  and  he  continues  to  hold 
after  the  expiration  of  the  first  year,  it  will  be  held  to  be  an 
election  on  his  part  to  hold  for  the  three  years.^  And  a  lease 
for  one  year,  and  so  on  from  year  to  year,  is  regarded  as  one 
for  two  years,  and  a  lease  "  for  years,"  without  any  number 
fixed,  is  for  two  years  certain.^  It  is  apprehended 
that  it  is  upon  the  idea  that  the  term  for  which  *  the  [*295] 
estate  is  to  be  held,  can  be  ascertained,  by  computing 
how  long  it  will  require  the  income  thereof  to  raise  a  given 
sum,  that  an  executor  takes  an  estate  for  years  under  a  devise 

1  Lit.  §  58. 

2  Co.  Lit.  45  b. ;  2  Prest.  Conv.  150  ;  2  Flint.  Real  Prop.  203.  Whether  a  lease 
for  so  many  years  as  the  lessor  himself  may  name,  would  become  a  fixed  term, 
if  he  were  to  name  a  certain  number  of  years,  qucere  1  West  Transp.  Co.  v. 
Lansing,  49  N.  Y.  508. 

3  Smith,  Land.  &  Ten.  15;  Burton,  Real  Prop.  §  487. 

*  Doe  V.  Dixson,  9  East,  15.  »  Delashman  v.  Barry,  20  Jlich.  292. 

«  Dunn  V.  Cartright,  4  East,  29 ;  Com.  Dig.  Land.  &  Ten.  91,  92. 


442  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

of  lands  for  the  payment  of  debts,  or  until  the  devisor's  debts 
are  paid.^  And  a  lease  of  premises  until  the  lessee  shall,  out 
of  the  rents,  repay  himself  for  a  certain  amount  of  expense 
incurred  by  him  in  repairs,  was  held  to  be  a  sufficientl}'  defi- 
nite term  to  be  a  valid  one.^  The  only  circumstance  required 
in  these  limitations  of  terms  of  years  is,  that  a  precise  time 
shall  be  fixed  for  the  continuance  of  the  term,  so  that  when 
the  commencement  of  the  term  is  ascertained,  the  period  of 
determination  by  effluxion  of  time  may  be  known  with  cer- 
tainty.^ And  it  was  held  by  the  court  of  Vermont,  that  an 
instrument  with  the  usual  features  and  incidents  of  a  lease, 
such  as  reserving  rent,  with  a  right  of  entry  for  non-payment 
of  it,  or  for  breach  of  conditions  expressed  therein,  may  be 
good  if  properly  executed,  although  in  terms  creating  a  per- 
petual estate  in  the  premises.^  And  in  Massachusetts,  it  was 
held  that  one  might  convey  a  fee  in  land  in  the  form  of  a  lease, 
although,  ordinarily,  applied  to  the  creation  of  terms  only.^ 

7.  A  tenant  for  years  is  never  said  to  be  seised  of  the  lands 
leased  ;  nor  does  the  delivery  of  a  lease  thereof  for  years  vest 
in  him  any  estate  therein.  He  thereby  acquires  a  right  of  en- 
try upon  the  land,  and  when  he  shall  have  entered,  he  is  said 
to  be  possessed,  not  of  the  land,  but  of  a  term  for  years,  while 
the  seisin  of  the  freehold  remains  in  the  lessor,  and  the  lessee's 
possession  is  the  possession  of  him  who  has  the  freehold.^ 

8.  Until,  as  already  stated,  the  lessee  shall  have  entered 
upon  the  leased  premises,  he  acquires  no  estate  in  the  same. 
The  interest  which  he  acquires  by  the  delivery  of  the  lease, 
and  before  entry  made,  is,  as  already  stated,  an  interesse  ter- 
mini; and,  accordingly,  Littleton,  in  defining  what  is  a  ten- 
ancy for  years,  after  stating  that  it  "is  awarded  between 
lessor  and  lessee,"  adds,  "  And  the  lessee  entereth  by  force  of 

1  1  Cruise,  Dig.  223.  But  it  has  been  held  that  an  instrument  granting 
premises  "for  any  term  of  years"  the  lessee  might  think  proper,  taken  in  con- 
nection with  the  uses  for  whicli  tliey  were  to  be  applied,  namely,  salt  works,  is  a 
valid  lease  for  a  term  determinable  upon  the  lessee's  abandoning  that  manufac- 
ture.    Horner  v.  Leeds,  1  Dutch.  (N.  J.)  lOG. 

2  Batchelder  v.  Dean,  16  N.  H.  208.  «  2  Prest.  Conv.  160. 
*  White  V.  Fuller,  38  Vt.  193. 

»  Jamaica  Pond  Co.  v.  Cliandler,  9  Allen,  168 ;  Co.  Lit.  43  b. 
ti  1  Cruise,  Dig.  224 ;  Lit.  §  59. 


CH.  X.  §  1.]  ESTATES   FOR   YEARS.  443 

the  lease."  ^  And  if  the  lessee  die  before  entry,  his  executors 
or  administrators  may  enter  in  his  stead.^  And  as  to  third 
persons,  the  right  of  possession  is  in  the  lessor,  until  the  con- 
tract has  been  consummated  by  entry  by  the  lessee.^ 
Consequently,  until  the  lessee  *  shall  have  taken  pos-  [*296] 
session,  he  cannot  have  trespass  quare  clausum  f regit 
against  a  stranger.*  But  a  lease  may  be  so  made,  where  a 
sufficient  consideration  is  expressed,  as  having  been  executed 
or  paid,  and  it  is  in  the  form  of  a  bargain  and  sale,  as  to 
operate,  under  the  statute  of  uses,  as  an  effectual  creation  of 
an  estate,  without  a  formal  entry.  Thus,  if  the  words  "  bar- 
gain and  sale,"  in  consideration  of  money,  be  contained  in  the 
lease,  or  in  consideration  of  money,  the  lessor  demises  the 
premises,  a  use  will  arise  in  favor  of  the  lessee.  But  if  it  be 
made  without  any  money  consideration,  the  lessee  has  nothing 
in  the  way  of  an  estate  until  entry  made  by  him.  Before 
that  has  been  done,  he  has  only  an  interesse  termini,  but  not 
a  possession.^  How  this  is  made  to  produce  this  effect  will  be 
explained  in  connection  with  the  law  of  uses.^  But,  it  seems, 
that  even  when  the  lease  takes  effect  under  the  statute  of 
uses,  it  is  necessary  that  the  lessee  should  have  made  an  actual 
entry  before  he  could  maintain  trespass ; ''  since  such  action 
is  founded  on  an  actual  possession.  But  an  entry  is  not 
necessary  to  the  vesting  of  a  term  of  years  in  the  lessee.^ 

9.  It  is  also  laid  down  by  some  writers,  that  a  lessee,  before 
entry  made,  cannot  maintain  an  action  of  ejectment.^  And 
regarding  such  action,  as  it  was  originally  designed  for  the 


1  1  Cruise,  Dig.  225;  Lit.  §  58;  Doe  v.  Wallcer,  5  B.  &  C.  111.  Nor  does  it 
make  any  difference  at  common  law  wliether  the  lessee  has  a  present  or  future 
right  of  entry,  until  entry  actually  made.  Id. ;  Co.  Lit.  46  b  ;  Co.  Lit.  270  a ; 
Bacon.  Abr.  Lease,  M;  Wood  v.  Hubbell,  10  N.  Y.  (6  Seld.)  487,  488. 

2  Co.  Lit.  46  b.  ^  Sennett  v.  Bucher,  3  Penn.  392. 
4  Bacon,  Abr.  Lease,  M ;  Smith,  Land.  &  Ten.  13 ;  Per  Ld.  Denman,  Wheeler 

V.  Montefiore,  2  Q.  B.  142. 

6  Wood's  Conv.  157,  159  ;  Co.  Lit.  46  b. 

6  1  Cruise,  Dig.  225 ;  4  Kent,  Com.  97  ;  Bacon,  Abr.  Lease,  M. 

1  Smith,  Land.  &  Ten.  14,  n. ;  Com.  Dig.  Trespass,  B.  3 ;  1  Piatt,  Leases,  23; 
2  Sand.  Uses,  56. 

8  Harrison  v.  Blackburn,  17  C.  B.  n.  s.  678. 

9  Bacon,  Abr.  Lease,  M  ;  Saffyn  v.  Adams,  Cro.  Jac.  61 ;  1  Piatt,  Leases,  23 
But  see  Mechan.  Ins.  Co.  v.  Scott,  2  Hilton,  550. 


444  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

recovery  of  a  term,  where  it  was  a  writ  of  trespass  in  its 
nature, 1  the  proposition  may  still  be  regarded  as  true.  But, 
according  to  the  modern  mode  of  proceeding,  the  action  being 
a  fictitious  one  Avhere  the  tenant  is  required  to  confess  lease, 
entrj^  and  ouster,  it  will,  doubtless,  be  sufficient  if  the  demand- 
ant has  a  title  and  right  of  entry .^  And  if  the  lease  be  future 
in  its  terms,  the  lessee  by  delivery  of  the  lease  acquires  such 
an  interest  in  the  term,  that  he  could  maintain  ejectment  to  re- 
cover it  without  any  further  act  on  his  part,  if  possession  were 
withheld  when  his  right  to  claim  it  had  become  complete.^ 

10.  This  interesse  termini,  however,  may  be  granted  or  as- 
signed by  the  lessee,*  but  upon  technical  grounds,  the  subtle- 
ness of  which  renders  it  hardly  worth  the  time  to  attempt  to 
explain  them,  it  cannot  be  surrendered,  though  it  may  be  ex- 
tinguished by  a  surrender  by  law,  or  by  an  assignment,  or  by 
a  release,  while  it  can  neither  promote  nor  hinder  the  merger 
of  an  estate.^  These  propositions  may  perhaps  be  sufficiently 
illustrated  by  the  following  cases.  The  lessee  of  a  term,  to 
commence  at  the  ensuing  Michaelmas,  took  a  new  lease  for 

years,  commencing  in  jjrcesenti,  and  it  was  held  to  be 
[*297]  a  surrender  of  the  *  first  lease.     So  had  the  new  lease 

been  made  to  take  effect  at  Michaelmas.  And  where 
a  lessor  made  a  lease  which  was  to  expire  in  1809,  and  then 
made  a  second  lease  of  the  same  estate  to  the  same  lessee,  to 
take  effect  at  the  expiration  of  the  first,  the  last  bearing  date 
in  1799,  and  the  lessor,  in  1800,  died,  having  devised  the 
leased  estate  for  life  to  the  lessee,  who  conveyed  his  life-estate 
before  1809,  it  was  held  that  this  interest  of  the  lessee,  in  the 
term  to  commence  in  1809,  was  not  merged  in  the  life-estate 
which  he  took  under  the  will,  because  the  two  estates  were 
not  in  him  at  the  same  time,  as  the  interesse  termini  was  not 
an  estate  till  entry  made,  and,  before  that  could  be  done,  he 
had  parted  with  his  life-estate. *5    It  should  have  been  remarked 

1  Adams,  Eject.  6 ;  Id.  10. 

2  Adams,  Eject.  14  ;  Id.  10,  61  ;  Gardner  v.  Keteltas,  3  Hill,  332. 

3  Whitney  v.  Allaire,  1  Comst.  305,  311. 

*  Co.  Lit.  46  b  ;  1  Flatt,  Leases,  22.  ^ 

5  Burton,  Real  Prop.  §§  907,  998  ;   2  Prest.  Conv.  215  ;   Co.  Lit.  338  a;  Doe 
V.  Walker,  5  B.  &  C.  111.     See  4  Kent,  Com.  97,  note  a. 

«  Doe  V.  Walker,  5  B.  &  C.  Ill ;  Sheppard,  Touchst.  324 ;   Co.  Lit.  270  a. 


CH.  X.  §  1.]  ESTATES   FOR   YEARS.  445 

that  the  rules  which  apply  to  an  interesse  termini  at  common 
law  apply  equally  to  all  leases  to  commence  infuturo.^  And 
where  A  made  a  lease  to  B,  of  a  hotel  for  a  term  of  years,  from 
a  future  day,  and  before  that  day  it  burned  down,  it  was  held 
that  the  lease  never  took  effect  so  as  to  make  the  lessee  liable 
for  rent.  The  lessor  must  give,  or  offer  to  give,  possession  of 
the  premises,  in  order  to  create  any  liability  for  the  rent,  and 
it  matters  not  whether  he  can  not  or  will  not  do  this.  So 
where  the  owner  of  a  hall  agreed  with  another  to  furnish  him 
the  use  of  it  for  a  concert  upon  certain  nights,  for  a  certain 
agreed  sum  of  money,  and  the  same  was  burned  before  the  first 
of  these  nights,  it  was  held  to  excuse  both  parties  from  per- 
forming on  their  respective  parts,  unless  the  owner  of  the  hall 
had  expressly  agreed  to  assume  the  risk  of  providing  the  hall. 
The  court  would  apply  the  same  rule  to  such  a  contract  as  to 
an  agreement  by  one  man  to  serve  another  who  should  die, 
or  an  agreement  by  an  artist  to  paint  a  picture  and  he  should 
lose  his  sight  before  executing  it.^  In  either  event  he  is  with- 
out remedy  for  the  rent  reserved.^  But  it  is  no  answer  to  a 
claim  for  rent,  that  the  premises  are  in  the  possession  of  another, 
unless  held  by  a  title  paramount  to  that  of  the  lessor,  since  by 
the  act  of  letting  the  premises,  the  lessor  does  not  warrant 
against  the  acts  of  strangers,  nor  does  he  engage  to  put  the 
lessee  into  actual  possession.*  But  where  the  lessor  himself 
has  only  a  reversion  or  remainder,  subject  to  an  intermediate 
particular  estate,  a  lease  by  him  will  be  considered  as  a  con- 
veyance of  so  much  of  his  estate  in  reversion  or  remainder, 
and  not  the  creation  of  an  interesse  termini.^ 

11.  A  forbearance  on  the  part  of  a  lessee  for  j'-ears  to  turn 
his  interesse  termini  into  an  actual  estate  by  making  an  entry, 
will  not  affect  his  liability  for  rent,  if  the  fault  is  not  on  the 
part  of  the  lessor,  for  the  rent  becomes  due  by  the  lease,  and 
not  by  the  entry  or  by  occupation,®  and  the  action  is  upon  the 

1  Doe  V.  Walker,  5  B.  &  C.  Ill ;  4  Kent,  Com.  .97. 

2  Taylor  v.  Coldwell,  3.  B.  &  S.  820. 

8  Wood  V.  Hubbell,  5  Barb.  601  ;  s.  c.  10  N.  Y.  (Seld.)  487,  489. 

*  Median.  Ins.  Co.  v.  Scott,  2  Hilton,  550.   »  Doe  v.  Brown,  20  Eng.  L.  &  Eq.  93. 

6  Bellasis  v.  Burbriche,  1  Ld.  Raym.  171 ;  s.  c.  Rep.  Temp.  Holt.  199 ;  1 
Piatt,  Leases,  2.3 ;  Maverick  v.  Lewis,  3  McCord,  216  ;  Williams  ?'.  Bosaiiquet,  1 
Brod.  &  B.  238 ;  Mechan.  Ins.  Co.  v.  Scott,  2  Hilton,  560  ;  Wliitney  v.  Allaire,  1 
Comst.  311. 


446  LAW    OF    REAL    PROPERTY.  [BOOK    I. 

covenant  as  for  a  breach  of  an  executory  covenant ;  ^  and, 
though  the  lessor  may  die  before  lessee  enters  under  his  lease, 
he  may  do  so  after  the  lessor's  death,  at  his  pleasure.^ 


[*298]  *  SECTION  II. 

HOW  ESTATES  FOR  YEARS  MAY  BE  CREATED. 

1.  Three  forms  of  doing  this  at  common  law. 

2.  What  is  requisite  by  the  statute  of  frauds. 

3.  Of  the  proper  terms  to  create  a  lease. 

4.  Distinction  between  a  lease  and  an  agreement  to  lease. 
4  a.  When  a  lease  and  when  an  agreement  form  one. 

5.  Importance  of  this  distinction. 

6.  Of  leases  operating  by  estoppel. 

7.  Of  parties  who  may  be  lessors. 

8.  Leases  made  good  by  ratification. 

9.  Of  ratification  by  wife  of  husband's  lease. 

10.  Lease  by  guardian,  executor,  &c. 

11.  Of  making  leases  under  powers  of  appointment. 

12.  Of  leases  by  tenants  in  common. 

13.  Who  may  be  lessees. 

14.  What  may  be  leased. 

15.  When  terms  for  j'ears  made  freeholds. 

16.  Of  terms  attendant  upon  the  inheritance. 

17.  Of  the  chattel  character  of  terms. 

18.  What  leases  need  to  be  recorded. 

19.  Leases  under  the  statute  of  uses. 

20.  Effect  of  possession  by  lessee  or  lessor. 

21.  How  far  lessee  is  liable  before  entry  made. 

22.  Lease  must  be  accepted  in  order  to  bind. 

23.  Consequences  of  relation  of  landlord  and  tenant. 

24.  Of  the  tenure  and  privity  between  lessor  and  lessee. 

25.  What  is  implied  by  such  relation,  and  where  it  exists. 

1.  There  were  three  modes  of  creating  an  estate  for  years 
at  the  common  law,  namel}^  by  deed,  by  writing  not  under 
seal,  and  by  parol,^  though,  if  it  was  of  an  incorporeal  heredit- 
ament, it  was  always  requisite  to  be  done  by  deed,^  and  by 

•  Lafarge  v.  Mansfield,  31  Barb.  345.  By  a  statute  of  Illinois,  the  lessor  has 
a  lien  for  rent  upon  the  crops  growing  or  grown  upon  the  demised  land  in  any 
year,  for  the  rent  of  that  year,  and  this  will  extend  over  two  years  in  respect  to 
such  crops  as  require  tliat  lengtii  of  time  to  mature  them.  Miles  v.  James,  36 
lU.  401. 

2  Lit.  §  66  ;  Co.  Lit.  51  b. 

3  Smith,  Land.  &  Ten.  60;  Den  v.  Johnson,  3  Green  (N.  J.),  116, 

*  Wms.  Real  Prop.  195 ;  Id.  327. 


CH.  X.  §  2.]  ESTATES    FOR   YEARS.  447 

the  statute  8  &  9  Vict.  c.  106,  leases  of  corporeal  as  well  as 
incorporeal  property  must  be  by  cleecl.^  The  statute  of  29 
Car.  II.  c.  3,  called  the  Statute  of  Frauds,  which,  with  some 
modifications,  has  been  adopted  by  nearly  all  the  several  States, 
declared,  among  other  things,  that  all  leases  for  more  than 
three  years,  "  not  put  in  writing  and  signed  by  the  parties," 
&c.,  should  have  the  force  and  effect  of  estates  at  will  only. 
But  as  terms  were  coupled  with  estates  of  freehold,  which 
required  a  deed  to  create  them,  the  question  arose  whether  a 
lease  of  a  term  must  not  also  be  by  deed.  But  it  seems  to  be 
settled  that  it  will  be  sufficient  that  such  a  lease  is  in  writing, 
though  not  under  seal,  to  comply  with  the  requirements  of 
that  statute.^  It  is  hardly  necessary  to  remind  the  reader 
that  the  estates  which  are  embraced  in  this  chapter  are  those 
only  which  are  valid  as  estates  for  years  within  the  Statute  of 
Frauds,  since  estates  at  will  and  tenancies  from  year  to  year 
will  form  the  subject  of  another  chapter.  The  laws  of  the 
various  States  vary  in  respect  to  leases  being  by  deed.  In 
most  of  them  it  is  enough  that  the  instrument  be  properly 
subscribed.  In  Virginia  and  Kentucky,  if  the  lease  be  for 
more  than  five  years,  it  must  be  under  seal.  So  in  Vermont 
and  Rhode  Island,  if  it  exceed  one  year.^  So  in  Minnesota, 
if  it  be  for  three  years  or  more.'*  A  lease  for  ninety-nine  years 
in  Maryland  must  be  by  deed.-^  And  a  lease  of  a  married 
woman's  estate  in  Pennsylvania,  for  any  term,  to  be  valid, 
must  be  acknowledged  by  her,  separate  from  her  husband.*^ 
In  New  Hampshire,  signing  only  is  necessary.'''     In  Ohio,  the 

1  Wms  Eeal  Prop.  196  ;  Smith,  Land.  &  Ten.  66,  n.  9. 

2  Den  V.  Johnson,  3  Green  (N.  J.),  116;  Allen  t-.  Jaquish,  21  Wend.  635; 
Wheeler  v.  Newton,  Prec.  in  Ch.  16.  In  some  States,  the  exception  as  to  requir- 
ing leases  to  be  in  writing  is  one  year  instead  of  three,  as  above  stated,  but  it 
does  not  aflFect  the  rule  under  consideration.  In  Massachusetts,  if  tlie  lease  be 
for  more  than  seven  years,  it  must  be  by  deed  under  seal.  Gen.  Stat.  c.  89,  §  3. 
A  lessor  would  not  be  entitled  to  sue  for  and  recover  from  the  lessee  his  part  of 
the  indenture  of  lease  before  tlie  expiration  of  the  term,  although  he  may  have 
entered  and  dispossessed  the  lessee  for  a  breach  of  covenant  and  condition.  On 
the  other  hand,  if  he  gets  possession  of  the  lessee's  part,  he  may  have  an  action 
to  recover  the  same  from  the  lessor.  Hall  v.  Ball,  3  M.  &  G.  242 ;  Elworthy  v. 
Sanford,  3  H  &  C.  330. 

3  Taylor,  Land.  &  Ten.  (3d  ed.)  §  34.  *  Chandler  v.  Kent,  8  Minn.  626 
6  Bratt  V.  Bratt,  21  Md.  583. 

6  Miller  V.  Harbert,  Law  Intelligencer,  Jan.  24,  1868. 

7  Olmstead  v.  Niles,  7  N.  H.  526. 


448  LAW   OF   REAL   PROPERTY.  [liOOK    L 

lease,  if  for  more  than  three,  years,  must  be  attested  by  two 
witnesses  and  aclvnowledged.^  In  Massachusetts,  if  it  be  for 
more  than  seven  years,  it  must  be  by  deed,  and,  in  order  to  be 
valid  against  third  persons  without  notice,  it  must  be  re- 
corded.^ 

2.  The  first  section  of  the  Statute  of  Frauds  requires  the 
writing  which  is  sought  to  be  availed  of  as  a  lease,  to  be 
"  signed  by  the  parties,  &c.,  making  the  same,  or  their  agents 
thereunto  lawfully  authorized  by  writing."  In  some  of  the 
States  the  appointment  of  the  agent  is  not  required  to 
[*299]  be  in  writing,  while  *  in  others  the  English  rule  upon 
the  subject  is  copied  and  adopted.^  *  A  question  grow- 
ing out  of  these  statutes  has  arisen  as  to  the  mode  of  signing 
leases  when  done  through  an  agent  in  the  actual  presence  of 
the  lessor,  and  by  his  direction.  In  South  Carolina,  the  court 
of  appeals  were  equally  divided  upon  the  point,  a  part  hold- 
ing that  if  an  instrument  is  signed  by  a  person  in  the  presence 
of  another,  in  the  name  and  by  the  express  direction  of  the 
latter,  it  is  a  good  signing  of  the  party  himself  at  common  law, 
and  that  the  statute  did  not  intend  to  extend  to  cases  like 
this.  But  the  other  part  of  the  court  applied  a  strict  con- 
struction to  the  language  of  the  act,  and  regarded  an  agent 
as  no  less  an  agent  Avhile  acting  in  presence  of  his  princi- 
pal than  he  would  be  in  his  absence.^  In  Massachusetts,  on 
the  contrary,  it  has  been  held  that  a  signature  placed  by  a 

*  Note.  —  In  the  following  States  the  English  rule  prevails  :  Alabama, 
Arkansas,  Georgia,  Maryland,  Michigan,  Missouri,  New  Hampshire,  New  Jersey, 
New  York,  Oliio,  Pennsylvania,  South  Carolina,  and  Wisconsin,  while  in  the  others 
the  requirement  is  either  simply  that  it  may  be  executed  hy  a  party  or  his 
"  agent,"  or  "  attorney,"  or  it  adds  "  lawfully  authorized,"  without  stating  how. 
In  Connecticut  it  must  be  signed  by  the  lessor,  and  in  Delaware  it  must  be  done 
by  deed.  In  the  following  States  leases  for  one  year  are  excepted  by  the 
Statutes  of  Frauds  from  tlie  requirement  that  they  should  be  in  writing  :  Alabama, 
Arkansas,  California,  Connecticut,  Delaware,  Illinois,  Iowa,  Kentucky,  Michigan, 
Mississippi,  New  York,  Rhode  Island,  Texas,  Virginia,  and  Wisconsin.  In  tlie 
following  it  is  the  same  as  in  England  :  Maryland,  New  Jersey,  North  Carolina, 
Pennsylvania,  and  South  Carolina.  It  is  two  years  in  Florida ;  while  in  Vermont, 
Oliio,  New  Hampshire,  Missouri,  Massachusetts,  Maine,  and  Indiana,  all  leases 
not  in  writing  create  mere  estates  at  will. 

1  Richardson  v.  Bates,  8  Ohio  St.  260.  2  Qen.  Stat.  c.  89,  §  3. 

3  See  the  statutes  of  the  several  States  collected  in  the  Appendix  to  Browne 
on  the  Stat,  of  Frauds,  503-531. 

4  Wallace  v.  McCullough,  1  Rich.  Eq.  (S.  C.)  417. 


CH.  X.  §  2.]  ESTATES    FOR   TEARS.  449 

third  person  in  the  grantor's  presence  and  by  his  direction, 
orally  given,  Avill  be  a  valid  execution  of  a  deed.^  It  mav  be 
added,  that  the  signing  should  be  by  the  party  himself,  or,  if 
by  his  agent,  the  act  should  be  the  act  of  the  principal  done 
by  his  agent,  and  so  expressed  ;  as  A  B,  by  his  attor- 
ney, C  D,2  while  *  merely  signing  the  name  of  the  [*300] 
principal,  as  A  B,  without  adding  by  whom  done, 
would  not  be  a  good  signing,^  nor  would  it  be  if  in  his  own 
name.* 

3.  In  respect  to  the  proper  terms  by  which  an  estate  for 
years  may  be  created,  any  form  of  expression  is  sufficient  if  it 
shows  an  intention  on  the  part  of  the  lessor  to  part  with  and 
divest  himself  of  the  possession  in  favor  of  the  lessee,  and  a 
corresponding  intention  on  the  part  of  the  lessee  to  come  into 
the  possession  of  the  premises  for  a  determinate  period  of  time. 
The  words  generally  used  for  this  purpose  are,  "  grant,"  "  de- 
mise," and  "  to  farm  let,"  some  of  which  have  a  technical  and 
extensive  signification.  "  Do  lease,  demise,  and  let,"  in  a 
lease,  import  the  creation  of  a  term  to  begin  presently,  and 
not  at  a  future  day  or  upon  a  contingency.^  But  neither  of 
them  is  indispensable  to  constitute  a  valid  lease,^  and  even 
when  adopted  they  may  be  controlled  by  the  connection  in 
which  they  are  used.'^     Thus,  where  A  gave  B  a  bond  condi- 

1  Gardner  v.  Gardner,  5  Gush.  482 ;  Wood  t-.  Goodridge,  6  Gush.  117. 

2  Bacon,  Abr.  Lease,  I.  §  10 ;  Opinion  of  Mr.  Hoffman,  3  Am.  Jur.  67  ;  Elwell 
V.  Sliaw,  16  Mass.  42.     Post,  vol  2,  pp.  *  673-575. 

8  Wood  V.  Goodridge,  6  Gush.  117  ;  1  Am.  Lead.  Gas.  3d  ed.  579. 
*  Gombe's  case,  9  Rep.  76  b. ;  1  Am.  Lead.  Gas.  3d  ed.  579. 

5  So.  Gong.  Meeting  House  v.  Hilton,  11  Gray,  409. 

6  Jackson  v.  Delacroix,  2  Wend.  438  :  Wms.  Real  Prop.  327.  "  Agree  to  let," 
"  agree  to  take,"  held  to  be  words  of  present  demise.  Doe  v.  Ries,  8  Bing.  182, 
per  Tindal,  G.  J. ;  Doe  v.  Benjamin,  9  A.  &  E.  650,  per  Denman,  G.  J.  So  are 
"  sliall  hold  and  enjoy."  Doe  v.  Ashburner,  5  T.  R.  168 ;  Burton,  Real  Prop. 
§  838  ;  Watson  v.  O'Hern,  6  Watts,  362  ;  Moshier  v.  Reding,  12  Me.  135  ;  Moore 
V.  Miller,  8  Penn.  St.  272  ;  Bacon,  Abr.  Lease,  K. ;  Wilson  v.  Martin,  1  Denio, 
602.     A  contract  for  board  and  lodging  is  not  a  lease. 

"!  Putnam  v.  Wise,  1  Hill,  234,  where,  though  the  terms  were  those  of  a  lease, 
it  was  held  to  constitute  the  parties  tenants  in  common  of  the  crops,  the  return 
for  the  occupation  being  a  share  of  the  crops.  See  Walker  v.  Fitts,  24  Pick.  191 ; 
Doe  V.  Deery,  9  Gar.  &  P.  494.  A  let  to  B  his  farm  for  seven  years,  and  B  at 
the  same  time  in  writing  agreed  to  employ  A  to  carry  on  tlie  farm  at  certain 
wages,  and  to  allow  him  to  occupy  the  house  free  of  rent ;  it  was  held  to  be  a 
contract  for  remuneration  for  services,  and  not  a  demise  of  the  liouso. 
VOL.  I.  29 


450  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

tioned  to  convey  land  upon  being  paid  a  certain  note  on  de- 
mand, with  interest  quarterly,  and  that  the  obligee  should 
have  possession  of  the  same  until  such  conveyance  should  be 
made,  it  was  held  to  be  a  demise  so  long  as  B  paid  the  inter- 
est on  the  note  quarterly,  and  did  not  fail  to  pay  the  princi- 
pal on  demand,  and  that  the  tenancy  created  was  not  one  at 
will.'  It  is  indispensable,  however,  that  the  lease  should,  by 
its  terms,  ascertain  the  premises  intended  to  be  demised,  for, 
if  defective  in  this  respect,  it  cannot  be  made  good  by  parol 
evidence.^ 

4.  Some  of  the  most  difficult  questions  under  this  head 
have  been,  whether  the  language  of  the  parties  is  to  be  con- 
strued as  a  present  demise  or  a  contract  for  a  future  one. 
And  whether  it  is  the  one  or  the  other,  depends  upon  the  in- 
tention of  the  parties,  as  gathered  fi'om  the  whole  instrument, 
rather  than  any  particular  form  of  expression  in  any  particu- 
lar part  of  the  agreement,  though,  as  a  general  proijosition,  if 
there  are  apt  words  of  a  present  demise,  followed  by  posses- 
sion, the  instrument  will  be  held  to  pass  an  immediate 
[*301]  interest.^  The  cases  are  numerous,  *  and  many  of 
them  apparently  conflicting.  Thus  in  Jackson  v.  Kis- 
selbrack,  the  memorandum  stated  that  L.  "  hath  set  and  to 
farm  let"  unto  K.,  &c.,  but  it  contained  a  clause,  "the  place 
to  be  surveyed  on  or  before,  &c.,  ensuing  the  date,"  "  and 
then  K.  is  to  take  a  lease  for  the  same."  The  court  (Spen- 
cer, J.)  say,  "  This  last  circumstance  has  generally  given  a 
character  to  the  instrument  of  an  agreement  for  a  lease  as  con- 
tradistinguished from  a  present  demise."  But,  it  is  added, 
"  none  of  the  cases  will  be  found  to  contradict  the  position 
that  where  there  are  apt  words  of  present  demise,  and  to  these 

1  White  V.  Livingston,  10  Cush.  259.  ^  Dingraan  v.  Kelly,  7  Ind.  717. 

8  Hallettt'.  Wylle,  2  Johns.  47  ;  Thornton  v.  Payne,  5  Johns.  74.  In  the  latter 
case,  the  judge,  Spencer,  says:  "In  every  case  decided  in  the  English  courts 
where  agreements  have  been  adjudged  not  to  operate  bypassing  an  interest,  but 
to  rest  in  contract,  there  has  been  either  an  express  agreement  for  a  future  lease, 
or,  construing  the  agreement  to  be  a  lease  in  prcEsenti  would  work  a  forfeiture,  or 
the  terms  have  not  been  fully  settled,  and  something  further  was  to  be  done." 
Jackson  v.  Delacroix,  2  Wend.  433 ;  Burton,  Real  Prop.  §  84-5 ;  AVarman  v, 
Faithfull,  5  B.  &  Ad.  1042 ;  AveriU  v.  Taylor,  4  Seld.  44 ;  Baxter  v.  Browne,  2 
W.  Bl.  973 ;  Morgan  v.  Bisseli,  3  Taunt.  65 ;  Wright  v.  Trevezant,  3  Car.  &  P. 
441.     See  Weed  v.  Crocker,  13  Gray,  219 ;  Hurlburt  v.  Post,  1  Bosw.  28. 


CII.  X.  §  2.]  ESTATES    FOR    YEARS.  451 

is  superadded  a  covenant  for  a  future  lease,  the  instrument  is 
to  be  considered  as  a  lease,  and  the  covenant  as  operating  in 
the  nature  of  a  covenant  for  further  assurance."  The  agree- 
ment in  that  case,  having  been  followed  by  possession,  was 
held  to  be  a  present  demise.^  The  question  seems  to  turr. 
upon  whether  the  writing  shows  that  the  parties  intend  a 
present  demise  and  parting  with  the  possession  by  the  lessoi 
to  the  lessee,  for,  if  it  does,  it  will  operate  as  a  lease,  though  it 
is  contemplated  that  a  future  writing  should  be  drawn,  more 
explicit  in  its  terms.  And  it  may  be  a  good  lease  in  distinc- 
tion from  an  executory  contract  to  lease,  though  it  be  to  com- 
mence infuturo?  But  if  a  fuller  lease  is  to  be  prepared  and 
executed  before  the  demise  is  to  take  effect,  and  possession 
given,  it  is  an  agreement  for  a  lease,  and  not  a  lease 
which  creates  an  estate .'"^  Thus,  where  it  *  was  cov-  [*302] 
enanted  between  A  &  B  "  that  A  doth  let  the  said 
lands  for  and  during  five  years,  &c.,  to  begin,  &c.,  provided 
that  B  shall  pay  to  A  annually  during  the  term  at,  &c.,  £120, 
also,  the  parties  do  covenant  that  a  lease  shall  be  made  and 
sealed  according  to  the  effect  of  these  articles,  before  the 
Feast,"  &c.,  it  was  held  to  be  a  good  present  lease  ;  "  that 
which  follows  the  demise  is  in  reference  to  further  assurance."  ^ 

1  Jackson  v.  Kisselbrack,  10  Johns.  336 ;  Chapman  v.  Bkick,  5  Scott,  529 ; 
Alderman  v.  Neate,  4  M.  &  W.  719.  But  see  Goodtitle  v.  Way,  1  T.  R.  785; 
Poole  V.  Bentley,  12  East,  168  ;  Wms.  Real  Prop.  327  ;  Pinero  v.  Judson,  6  Bing. 
206 ;  Doe  v.  Ries,  8  Bing.  178 ;  Jones  v.  Reynolds,  per  Wightman,  J.,  1  Q.  B. 
517. 

2  Whitney  ;;.  Allaire,  1  Comst.  305,  311. 

3  Aiken  v.  Smith,  21  Vt.  172 ;  People  v.  Gillis,  24  Wend.  201 ;  Jackson  v. 
Eldridge,  3  Story,  325;  Buell  v.  Cook,  4  Conn.  238,  where  the  agreement  was 
held  to  be  for  a  lease  and  not  a  lease  itself,  as  it  showed  the  lessor  was  to  get  an 
authority  from  another  party  before  he  could  make  a  valid  demise.  In  Doe 
V.  Benjamin,  9  A.  «&  E.  644,  "agree  to  let  "  was  held  equivalent  to  an  actual 
present  letting,  though  no  time  was  fixed  for  commencement  of  the  same,  and 
the  agreement  contained  a  clause,  "  a  lease  to  be  drawn  upon  the  usual  terms." 
See  Jackson  v.  Myers,  3  Johns.  395;    Sturgion  v.  Dorotliy  Painter,  Noy,  128. 

4  1  Rolle,  Abr.  847.  In  Jackson  v.  Delacroix,  2  Wend.  4;]3,  there  were  words 
of  present  demi.se,  but  the  agreement  showed  that  alterations  were  to  be  made 
in  the  estate  before  the  lease  was  to  take  effect,  it  was  held  not  to  be  a  lease. 
But  in  Bacon  v.  Bowdoin,  22  Pick.  401,  though  the  lessor  was  in  terms  to  com- 
plete a  building,  the  agreement  was  a  present  demise  of  it  for  a  certain  time, 
and  the  lessee  was  to  have  a  right  to  use  it  for  certain  purposes  from  the  date  of 
the  agreement,  it  was  held  to  be  a  present  lease.     In  Chapman  v.  Towner.  6  M. 


452  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

And  it  is  said  that  acts  and  declarations  of  the  parties  may 
be  looked  to,  to  aid  in  the  construction  which  is  to  be  given 
to  their  agreements  in  this  respect,  where  the  agreement  is 
equivocal,  especially  the  yielding  of  possession  by  the  one  and 
accepting  it  by  the  other.^  And  sometimes  an  agreement 
which  might,  otherwise,  be  defective  for  want  of  stipulations 
as  to  the  terms  of  the  letting,  may  be  made  good  by  providing 
these  shall  be  "such  as  are  usually  contained  in  leases." ^ 

4  a.  The  court  say  that  the  test  whether  a  written  instru- 
ment is  a  lease  or  only  an  agreement  for  a  lease,  seems  to  be, 
that  if  the  agreement  of  the  parties  leaves  nothing  incomplete, 
it  may  operate  as  a  present  demise.  Thus  "  we  agree  to  let " 
certain  land  to  a  gas  company  to  place  sand,  &c.,  on,  for  the 
construction  of  a  gas-holder,  to  be  occupied  during  the  con- 
struction of  the  same,  was  held  to  be  an  actual  letting,  by 
which  the  lessors  were  bound,  although  they  never  built  their 
gas-holder  upon  the  proposed  site.^  So  where  A  wrote  B  that 
he  would  take  his  house  at  a  certain  rent  for  three  years,  if  he 
would  put  a  furnace  into  it,  and  B  replied  by  letter  that  he 
accepted  the  offer,  and  at  once  procured  and  placed  a  fur- 
nace in  the  house  before  the  day  fixed  for  the  three  years  to 
begin,  it  was  held  to  be  a  lease  and  not  a  mere  offer  to  take 
one.^  In  another  case,  A  proposed  to  B,  in  writing,  to  hire  a 
shop  of  certain  dimensions  on  a  certain  piece  of  land  for  a 
certain  time,  at  a  certain  rent,  if  B  would  erect  it ;  and  B  ac- 
cepted the  offer  and  erected  the  shop,  and  A  went  into  occu- 
pation of  it.  But,  in  fact,  B  did  not  own  the  land  and  did 
not  complete  the  shop  within  the  time  agreed.  It  was  held 
that  by  accepting  and  entering  into   occupancy  of  the  prem- 

&  W.  100,  there  were  words  of  demise  in  the  agreement,  but  the  amount  of  rent 
or  terms  of  holding  were  not  mentioned  in  it,  except  as  to  be  contained  in  a  lease 
to  be  prepared,  it  was  held  to  be  an  agreement  and  not  a  lease.  See  6  M.  &  W. 
104,  Am.  ed.,  note  ;  Morgan  v.  Bissell,  3  Taunt.  65  ;  Jones  v.  Reynolds,  1  Q.  B. 
515.  But  in  Doe  v.  Benjamin,  1  Perr.  &  D.  444,  Lord  Denman  declares  Morgan 
V.  Bissell  overruled,  so  far  as  that  provision  for  giving  a  future  lease  controls  a 
present  demise. 

1  Chapman  v.  Bluck,  5  Scott,  5.33,  per  Parke,  J.,  s.  c.  4  Bing.  N.  C.  187  ;  Doe 
V.  Ashburner,  5  T.  R.  163. 

■•2  Alderman  v.  Neate,  4  M.  &  W.  704. 

3  Kabley  v.  Worcester  Gas  Co.,  102  Mass.  394. 

*  Shaw  V.  Farnsworth,  108  Mass.  857. 


CH.  X.  §  2.]  ESTATES    FOR    YEARS.  453 

ises,  the  agreement  became  an  effectual  lease  for  the  fjgreed 
term,  though  A  might  recoup  the  damages  he  sustained  by 
B's  delay  in  completing  the  shop.^  But  in  such  a  case,  a 
failure  of  the  lessor  to  have  the  building  completed  by  the 
time  fixed  in  the  agreement  would,  if  the  lessee  chose,  release 
hin£  from  his  obligation  to  accept  it  and  pay  rent.^  And 
where  there  was  an  agreement,  not  under  seal,  on  one  part  to 
let  and  on  the  other  to  hire,  and  that  a  good  lease  should  be 
made  at  the  joint  expense  of  the  parties,  it  was  held,  though 
not  to  be  a  lease,  to  be  binding  as  an  agreement  to  take  a 
lease.^ 

5.  The  importance  of  this  distinction  between  agreements 
to  lease,  and  agreements  Avhich  operate  as  leases,  results, 
among  other  things,  from  this,  that  as  an  executed  written 
contract  must  speak  for  itself,  and  cannot  be  added  to  or 
corrected  by  parol,  if  the  agreement  be  held  to  be  a  lease  the 
parties  will  be  bound  by  it,  as  written,  with  its  implied  as 
well  as  express  covenants  and  stipulations ;  whereas,  if  it  is  a 
mere  agreement  to  lease,  these  may  be  rectified  or  supplied 
before  it  is  executed,  or  the  party  may  refuse  to  execute 
it.4 

.*6.  In  treating  thus  far  of  what  may  be  a  lease,  and  [*303] 
of  its  effect,  it  has  been  assumed  that  he  who  makes 
the  agreement  is  the  owner  of  the  interest  or  estate  which  he 
assumes  to  demise.  There  is,  however,  a  class  of  cases  where 
a  lease  may  become  operative,  though  the  lessor,  at  the  time 
of  making  it,  has  no  estate  in  the  subject-matter  of  the  lease. 
This  is  by  way  of  what  is  called  an  estoppel.  Thus  suppose  A 
makes  a  deed  of  indenture  of  lease  of  premises  to  which  he 
has  no  title,  and  afterwards  acquires  one  during  the  term  ;  he 
will  not  be  admitted  to  deny  that  his  lessee  had  a  good  title 
to  the  same,  nor,  on  the  other  hand,  will  the  lessee,  if  per- 
mitted to  occupy  under  such  a  lease,  be  at  liberty  to  deny  the 
title  of  his  lessor.^     In  one  case,  one  in  possession  of  premises 

1  Havea  v.  Wakefield,  39  111.  509.  2  xidey  v.  Mollett,  16  C.  B.  n.  s.  298. 

3  Bond  V.  Roslino:,  1  B.  &  S.  371.  *  Sugden's  Letters,  118. 

8  Burton,  Real  Prop.  §  850  and  n. ;  Smith,  Land.  &  Ten.  32,  and  n. ;  Co. 
Lit.  47  b  ;  Sturgeon  v.  Wingfield,  15  M.  &  W.  224 ;  Bank  of  Utica  v.  Mersereau, 
3  Barb.  Ch.  567  ;  Wms.  Real  Prop.  329 ;   Rawlyn's  case,  4  Rep.   53 ;  Bac.  Abr. 


454  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

leased  them,  but  without  any  covenant  except  that  the  lessee 
should  enjoy  without  interference  by  the  lessor  or  any 
one  claiming  under  him,  and  the  lessor  having  acquired  title 
to  the  premises,  it  was  held  that  the  lessee  might  hold  as 
against  this  newly  acquired  title  by  force  of  the  lessor's  per- 
sonal covenant.  But  if  the  title  thus  acquired  be  an  equity 
of  redemption,  and  the  estate  be  sold  under  the  mortgage, 
and  there  is  a  surplus  after  satisfying  the  mortgage,  the  lessee 
not  only  would  lose  his  estate,  but  would  have  no  remedy 
against  the  lessor  nor  any  right  to  the  surplus.^  To  produce 
the  effect  above  stated,  the  lease  must  be  by  indenture,  where- 
by the  deed  becomes  the  act  of  both  parties,  in  order  that  the 
estoppel  thereby  created  may  be  mutual.^  As  a  corollary 
from  the  proposition  that  such  estoppels  must  be  mutual,  it 
follows  that  infants  and  femes  covert  cannot  avail  themselves 
of  the  benefit  of  a  lease  where  the  lessor  demises  premises 
without  having  any  estate  in  the  same.^  So,  by  the  American 
law,  if  one  having  no  estate  grant  land  by  deed  with  cove- 
nants of  warranty  of  title,  and  afterwards  acquire  a  title 
to  the  granted  premises,  it  will  enure  and  pass  to  the 
grantee  by  estoppel.*  Bat  this  doctrine  of  creating  a  demise 
of  a  certain  extent  of  estate  by  estoppel  does  not  apply  where 
the  lessor  has  any  legal  estate  in  the  premises  which  passes 
by  the  lease,  though  less  tlian  that  which  he  has,  in  terms,  de- 
mised.^ One  pretty  obvious  reason  for  this  rule  would  be, 
that  to  fix  what  the  amount  of  estate  is  which  actually  passes 
by  the  lease,  would  open  the  very  inquiry  by  evidence  which 
it  is  the  purpose  and  effect  of  an  estoppel  to  preclude. 

Lease,  0.  This  class  of  cases  should  be  distinguished  from  that  hereafter  treated 
of,  where  leases  are  made  by  donees  of  powers,  and  held  good,  though  such 
donee  had  no  interest  in  the  premises  demised. 

1  Burr  V.  Stenton,  43  N.  Y.  462,  466. 

2  Burton,  Real  Prop.  §  850 ;  Co.  Lit.  352  a ;  1  Piatt,  Leases,  55. 

3  1  Piatt,  Leases,  55. 

4  Somes  y.  Skinner,  3  Pick.  52 ;  Baxter  v.  Bradbury,  20  Me.  260 ;  2  Smith, 
Lead.  Cas.  5th  Am.  ed.  625 ;  White  v.  Patten,  24  Pick.  324 ;  Bank  of  Utica  v. 
Mersereau,  3  Barb.  Ch.  567 ;  Rawle,  Gov.  c.  9 ;  Wms.  Real  Prop.  330,  Rawle's 
note. 

s  Co.  Lit.  45  a  ;  Burton,  Real  Prop.  §  850  ;  Wms.  Real  Prop.  3-30 ;  Blake  v. 
Foster,  8.  T.  R.  496.  See  Cuthbertson  v.  Irving,  4  Hurl.  &  Nor.  742,  where  this 
subject  is  fully  considered. 


CH.  X.  §  2.]  ESTATES    FOR   YEAES.  455 

*7.  In  respect  to  who  may  be  parties  to  such  leases  [*304] 
as  have  been  mentioned  above,  it  may  be  said,  gener- 
ally, that  the  same  rules  apply  as  in  other  cases  of  conti^act. 
In  treating  of  who  may  be  lessors,  it  may  be  stated,  that  the 
lease  of  a  person  non  compos  mentis^  regarded  as  an  executory 
contract,  is  void.  But  it  has  been  held  otherwise  in  England, 
in  respect  to  an  executed  contract,  where  the  parties  cannot 
be  restored  in  statu  quo^  especially  in  the  case  of  a  lunatic, 
if  the  unsoundness  of  mind  was  unknown  to  the  other 
party,  and  no  advantage  Avas  taken  of  him.^  In  the  United 
States,  it  would  seem  that  it  makes  no  difference  with  the 
parties  as  to  the  right  of  a  person  7ion  compos  to  avoid  any 
and  all  his  contracts,  that  the  party  dealing  with  him  was  not 
apprised  of  his  incapacity,  and  did  not  overreach  him.^  And 
in  this  respect,  insane  persons  and  infants  are  placed  upon 
the  same  ground,  substantially,  as  to  their  acts  being  voidable 
and  not  void,  provided  the  insane  person  be  not  under  guar- 
dianship.^ But,  in  New  York,  the  deed  of  a  person  non  com- 
pos mentis  is  entirely  void.*  As  to  infants,  it  seems  that  to 
disaffirm  an  act  which  is  voidable  only,  requires  some  positive 
act  on  their  part,  while,  as  will  appear,  it  may  be  ratified  by 
slight  circumstances  and  in  some  cases  even  by  inaction. 
What  is  necessary  in  order  to  disaffirm  such  act,  has  received 
different  constructions  at  different  times,  and  must  obviously 
depend  much  upon  the  nature  of  the  original  act.  If,  for  in- 
stance, an  infant  has  made  a  deed  of  conveyance  of  land,  inas- 
much as  he  has  parted  with  his  seisin  thereby,  it  has  been 

1  Smith,  Land.  &  Ten.  47,  ancl  note  ;  Molton  v.  Camroux,  2  Exch.  487,  s.  c. 
4  Exch.  17  ;  Dane  v.  lurkwall,  8  Car.  &  P.  679;  Beavan  v.  M'Donnell,  9  Exch. 
309. 

2  Seaver  v.  Phelps,  11  Pick.  304 ;  Mitchell  v.  Kingman,  -5  Pick.  431 ;  Rice  v. 
Peet,  15  Johns.  503  ;  Bensell  v.  Chancellor,  5  Whart.  371  ;  Estate  of  Desilver,  5 
Rawle,  111,  wliere  it  was  held  that  a  deed  of  bargain  and  sale  by  a  lunatic  was 
void,  though  a  feoffment  and  livery  of  seisin  by  him  would  only  be  voidable. 
Grant  v.  Thompson,  4  Conn.  203  ;  Lang  n.  Whidden,  2  N.  H.  435.  In  Fitzgerald 
V.  Reed,  9  S.  &  M.  94,  the  court  say,  "  The  contracts  of  non  compotes  mentis  are, 
if  not  wholly  void,  at  all  events  voidable."  This  was  a  case  of  a  purchase  of 
land.     Post,  vol.  2,  pp.  *558,  *559. 

*  Hovey  v.  Hobson,  53  Me.  451,  456;  Thomnson  v.  Leach,  3  Mod.  310;  Som- 
ers  V.  Pumphrey,  24  Ind.  238. 

*  Van  Ueuseu  v.  Sweet,  51  N.  Y.  384. 


456  LAW   OF  BEAL   PBOPERTY.  [BOOK   I. 

held,  and,  it  is  believed  is  the  better  doctrine,  that  he  can 
only  avoid  it  by  re-entry,  unless  he  has  retained  possession, 
or  unless  it  was  wild  and  vacant  land,  in  which  case  a  deed 

of  it  to  a  stranger  would  be  a  disaffirmance  of  his  first 
[*305]  conveyance.^  All  the  cases  agree  *  that  such  an  entry 

would  be  sufficient  and  effectual.  But  in  several  it 
was  held  that  a  deed,  without  a  formal  prior  entry  to  regain 
a  seisin,  would  be  sufficient.^  So  one  who  executes  an  agree- 
ment while  so  intoxicated  as  not  to  understand  its  meaning 
and  effect  may  avoid  it.®  Leases  by  married  women  are  void, 
unless  they  relate  to  their  own  sole  property  over  which,  by 
chancery  or  the  statute  of  the  State  where  they  live,  they  are 
authorized  to  act  as  femes  sole.^  Thus  in  New  York  and 
Massachusetts  a  wife  can  hire  or  let  lands,  or  enter  into  any 
contract  in  respect  to  them,  as  fully  and  effectually  as  afeyne 
sole  could  do.^  Leases  obtained  by  duress  are  voidable,  but 
not  void.^  Leases  made  by  infants  also  are  voidable,  but  not 
void."  So  a  lease  may  be  avoided  for  fraud.  But  if  the  lessee 
be  the  party  defrauded,  he  should  act  promptly  in  rescinding 
the  contract ;  and  so  long  as  he  retains  possession  of  the  prem- 
ises, he  is  liable  for  the  rent.^  And  if  the  grantor  in  a  deed 
seeks  to  avoid  it  on  the  ground  of  fraud,  he  must  rescind  the 

1  "Worcester  o.  Eaton,  13  Mass.  371  ;  Whitney  v.  Dutch,  14  Mass.  463  ;  Roberts 
V.  Wiggin,  1  N.  H.  75,  unless  the  land  be  wild  and  vacant :  Murray  v.  Shanklin, 
4  Dev.  &  Bat.  289 ;  Bool  v.  Mix,  17  Wend.  133,  explaining  Jackson  v.  Burchin, 
14  Johns.  124,  and  Tucker  v.  Moreland,  10  Pet.  65. 

2  Cresinger  i'.  Welch,  15  Ohio,  192;  Scott  v.  Buchanan,  11  Humph.  468; 
Drake  v.  Ramsay,  5  Ohio,  251 ;  Jackson  y.  Carpenter,  11  Johns.  539  ;  Jackson 
V.  Burchin,  14  Johns.  124,  where  the  land  was  vacant ;  Tucker  v.  Moreland,  10 
Pet.  65,  the  minor  having  been  all  the  time  in  occupation  of  the  premises. 

8  Gore  V.  Gibson,  13  M.  &  W.  623. 

4  Smith,  Land.  &  Ten.  48 ;  1  Piatt,  Leases,  48 ;  Murray  v.  Emmons,  19  N.  H. 
483. 

5  Prevot  V.  Lawrence,  51  N.  Y.  221 ;  Mass.  Stat.  1874,  c.  184  ;  Melley  v.  Casey, 
99  Mass.  243,  was  decided  under  a  prior  statute. 

6  Perkins,  §  16;  1  Piatt,  Leases,  47 ;  Worcester  v.  Eaton,  18  Mass.  371. 

7  Co.  Lit.  308  a  ;  Zouch  v.  Parsons,  3  Burr.  1806 ;  Worcester  v.  Eaton,  13 
Mass.  375;  Scott  u.  Buchanan,  11  Humph.  468;  Kendall  v.  Lawrence.  22  Pick. 
540;  Roof  v.  Stafford,  7  Cow.  179;  Stafford  v.  Roof,  9  Cow.  626;  Roberts  v. 
Wiggin,  1  N.  H.  73  ;  Tucker  v.  Moreland,  10  Pet.  71  ;  Jackson  v.  Carpenter,  11 
Johns.  539 ;  Drake  v.  Ramsay,  5  Ohio,  251 ;  Bool  v.  Mix,  17  Wend.  131 ;  Post, 
vol.  2,  pp.  *558,  *559. 

8  McCarty  v.  Ely,  4  E.  D.  Smith,  875. 


CH.  X.  §  2.]  ESTATES   FOR   YEARS.  457 

contract,  and  return  the  consideration  within  a  reasonable 
time  after  discovering  it,  or  it  will  be  too  late.^  Bat  this  does 
not  apply  to  cases  of  an  infant's  conveying  lands,  especially  if 
the  money  has  been  spent  or  wasted  by  him  while  a  minor.^ 

8.  Such  leases  may  consequently  be  affirmed  and  made 
effectual  by  ratification,  or  disaffirmed  and  avoided,  by  the  acts 
and  declarations  of  the  lessor,  done  or  made  at  a  proper  time. 
In  the  first  place,  the  right  to  disaffirm  a  lease  is  a  personal 
privilege,  and  must  be  exercised  by  the  lessor  himself  or  his 
heirs,  and  not  by  a  stranger.^  So  far  as  a  lease  is  to  be  re- 
garded as  having  the  properties  of  a  deed  of  conveyance  of 
land,  the  authorities  above  cited  may  be  applicable.  But,  as 
will  be  seen,  the  law  is  much  more  liberal  in  allowing  an  in- 
fant to  disaffirm  the  sale  of  a  chattel  than  the  conveyance  of 
land,  since  he  may  do  the  one  before  arriving  at  age,  but  he 
cannot  disaffirm  his  deed  of  conveyance  while  an  infant.  It 
would  seem  by  the  analogy  there  is  between  the  chattel  inter- 
est in  a  term  for  years,  in  wdiich  no  seisin  passes,  and 
the  property  in  *  personal  chattels,  that  a  lease  may  [*306] 
be  disaffirmed  by  an  infant  before  arriving  at  age,  and 
from  the  well-settled  principle,  that,  though  an  infant  cannot 
defeat  his  deed  until  he  is  of  age,  he  may  enter  and  take 
the  profits  of  the  land  while  an  infant,  an  infant  lessor  may 
enter  and  avoid  his  lease  during  his  infancy.  However  this 
may  be  held  by  the  courts,  the  following  authorities  are  clear, 
that  while  an  infant  may  not  avoid  his  deed  until  after  arriv- 
ing at  age,  he  may  disaffirm  and  avoid  a  sale  of  a  chattel.* 
In  respect  to  the  time  within  which  an  infant  may  or  must 
disaffirm  the  act  which  he  would  avoid,  in  some  cases  it  has 

1  Bassett  v.  Brown,  10'.  Mass.  551 ;  Bartlett  v.  Drake,  100  Mass.  176. 

2  Walsh  V.  Young,  110  Mass.  399 ;  Chandler  v.  Simmons,  97  Mass.  508  ;  Bart- 
lett V.  Drake,  100  Mass.  176. 

3  1  Piatt,  Leases,  32;  Worcester  v.  Eaton,  13  Mass.  371 ;  Wheaton  v.  East, 
5  Yerg.  61. 

*  Zouch  V.  Parsons,  3  Burr.  1808  ;  but  he  may  enter  and  take  the  profits,  s.  p. 
Bool  V.  Mix,  17  Wend.  132;  Scott  v.  Buchanan  11  Humph.  473 ;  Roof  r.  Staf- 
ford, 7  Cow.  179,  that  he  can  avoid  neither  as  to  personalty  nor  lands  until  of 
age.  But  overruled  as  to  personalty,  and  afiirmed  as  to  lands.  StatYord  v.  Roof, 
9  Cow.  628 ;  Sliipman  v.  Horton,  17  Conn.  481 ;  Matthewson  r.  Joimson,  1  Iloff. 
Ch.  560,  though  an  infant  may  not  avoid  his  deed  till  of  age,  he  may  enter  and 
take  the  profits  of  the  land. 


458  LAW  OF  REAL  PROPERTY.  [BOOK  L 

been  held  tliat  he  may  avoid  his  deed  of  lands  at  any  time 
after  arriving  at  age,  within  the  period  of  limitation  for  mak- 
ing an  en  try. ^  In  others  it  has  been  held  he  must  do  it,  if  at 
all,  within  a  reasonable  time  after  ;irriving  at  age,  and  if  not 
done  "within  such  time  it  becomes  irrevocable.'-^  And  others 
hold,  that  in  regard  to  contracts,  in  order  to  make  them  bind- 
ing as  such,  the  minor  must  affirm  them  after  coming  of  age, 
by  some  distinct  act,  with  full  knowledge  that  it  would  not 
be  binding  without  such  confirmation.^  Slight  circumstances 
often  amount  to  a  confirmation  by  a  minor  after  coming  of 
age,  as,  in  the  cases  above  cited,  a  mere  omission  to  do  any 
act  of  disaffirmance  within  a  reasonable  time.  In  Wheaton  v. 
East,  the  infant  vendor,  after  coming  of  age,  saw  his  vendee 
making  expensive  improvements  on  the  land,  and  said  he  had 

been  paid  and  was  satisfied,  and  it  was  held  a  confir- 
[*307]  mation,  *  though  this  was  within  two  years  after  his 

majority.^  In  Houser  v.  Reynolds,  the  vendor,  after 
coming  of  age,  said  he  never  would  take  advantage  of  his 
having  been  an  infant  when  he  made  the  deed,  and  told  the 
grantee  it  was  his  wish  he  should  keep  the  deed.^  And  the 
receipt  of  rent  upon  a  lease  after  arriving  at  age,  would  of 
itself  affirm  the  lease. ^ 

9.  As  by  common  law  the  husband  is  entitled  to  the  rents 
and  profits  of  his  wife's  lands,  a  lease  by  him  of  these  may  be 
good  during  coverture,  though  she  do  not  join  in  the  same;'^ 
and  if  she  join  in  the  lease,  the  covenant  as  to  payment  of 
rent  will  enure  to  his  benefit  alone,  and  may  be  declared  on 
accordingly.^ 

1  Drake  v.  Ramsay,  5  Ohio,  251 ;  Cresinger  v.  Welch,  15  Ohio,  193. 

2  Richardson  v.  Boright,  9  Vt.  368 ;  Holmes  v.  Blogg,  8  Taunt.  35 ;  Kline  v. 
Beebe,  6  Conn.  494;  Scott  v.  Buchanan,  11  Humph.  468;  2  Kent.  Com.  238; 
Hoit  V.  Underhill,  9  N.  H.  436. 

3  Curtin  v.  atton,  11  S.  &  R.  305;  Thompson  v.  Lay,  4  Pick.  48  ;  2  Kent, 
Com.  8th  ed.  239,  n. ;  Hoyle  v.  Stowe,  2  Dev.  &  Bat.  320.  So  of  a  deed.  Tucker 
V.  Moreland,  10  Pet.  76. 

*  Wheaton  v.  East,  5  Yerg.  02.     See  Wallace  v.  Lewis,  4  Harring.  75. 

s  Houser  v.  Reynolds,  1  Hayw.  143. 

«  Smith,  Land.  &  Ten.  48.  See  also  Clieshire  v.  Barrett,  4  McCord,  241 ; 
Smith  II.  Low,  1  Atk.  489. 

'  1  Piatt,  Leases,  138;  Burton,  Real  Prop.  §  895;  Smith,  Land.  &  Ten.  41; 
Wms.  Real  Prop.  336. 

8  Arnold  v.  Revoult,  1  Brod.  &  B.  443;  Wallis  v.  Harrison,  5  M.  &  W.  142; 
Bret  V.  Cumberland,  Cro.  Jac.  399. 


CH.  X.  §  2.]  ESTATES    FOR   YEARS.  459 

10.  The  guardian  of  a  minor  may  lease  his  lands. ^  But  this 
is  limited  by  the  term  of  his  office,  and  a  demise  for  a  longer 
period  than  the  minority  of  his  ward  would  be  void  as  to  the 
excess,  at  the  election  of  the  ward.^  Thus,  in  New  York,  it 
was  held,  that  while  a  guardian  might  lease  his  ward's  lands 
for  a  term  as  long  as  he  continues  guardian,  or  for  any  num- 
ber of  years  within  the  minority  of  his  ward,  it  is  subject  to 
be  defeated  by  the  appointment  of  a  new  guardian ;  and  a 
similar  principle  is  recognized  in  Illinois.^  The  same  rule 
applies  to  guardians  of  insane  persons.  The  lease  would  de- 
termine upon  the  death  of  the  ward,  whatever  its  terms  may 
have  been.  But  whethet  it  would  bind  the  lessee  for,  the  ori- 
ginal term,  if  the  heirs  of  the  ward  chose  to  affirm  the  lease, 
seems  to  be  left  unsettled.*  But  a  parent  is  not  such  a  guar- 
dian as  to  have  a  right  to  lease  or  deal  with  the  lands  of  his 
minor  child.^  Executors  and  administrators,  as  having  the 
property  in  a  term  for  years,  may  dispose  of  the  whole  or 
carve  out  a  less  estate  by  under-lease.^  Nor  can  an  executor 
or  administrator  of  a  lessee  disclaim  the  leasehold  interest  of 
the  deceased.'^  And,  in  the  case  of  two  or  more  executors,  a 
lease  or  transfer  of  a  term  by  one,  if  jjurporting  to  be 
of  *the  entire  interest,  will  pass  it.^  Trustees  who  [*808] 
have  the  legal  fee  in  lands  may  lease  them  to  any 
extent,  the  right  being  incident  to  the  legal  estate.^  Corpora- 
tions have  a  power  to  lease  their  lands,  as  incident  to  the  power 
to  hold  them,  and  this  they  may  do  either  with  or  without 
a  seal.^*^ 

1  2  Kent,  Com.  228  ;  King  v.  Oakley,  10  East,  494. 

2  1  Piatt,  Leases,  380  ;  Bacon,  Abr.  Lease,  I.  9 ;  Smith,  Land.  &  Ten.  46. 
The  acceptance  of  rent  by  the  minor,  after  coming  of  age,  would  affirm  such 
lease,  and  make  it  valid.  Ross  v.  Gill,  4  Call,  250 ;  Van  Doren  v.  Everitt,  2 
South.  469. 

»  Emerson  v.  Spicer,  46  N.  Y.  594;  Webster  v.  Conley,  46  111.  13. 
*  Campall  v.  Shaw,  15  Mich.  232. 

^  Smith,  Land.  &  Ten.  46,  n. ;  May  v.  Calder,  2  Mass.  55 ;  Anderson  v.  Darby, 
1  Nott  &  M.  869 ;  Magruder  v.  Peter,  4  Gill  &  J.  323. 
«  Bacon,  Abr.  Lease,  I.  7 ;  1  Piatt,  Leases,  366. 

7  Burton,  Real  Prop.  §  972. 

8  Wms.  Ex'rs.  778;  Id.  810,  n..  Am.  ed.;  Doe  v.  Sturges,  7  Taunt.  217.  See 
also  George  v.  Baker,  3  Allen,  326,  note. 

9  Hill,  Trust,  482.  lO  Ang.  &  Ames,  Corp.  §  220;  2  Kent,  Com.  233. 


460  LAW  OF  REAL  PROPERTiT.  [bOOK  I. 

11.  As  the  making  of  leases  comes  more  properly  under  the 
head  of  conveyancing  than  an  inquiry  into  the  nature  and 
properties  of  estates  for  years,  it  is  not  proposed  to  enlarge 
upon  the  question  how  these  parties  already  mentioned  may 
exercise  this  power.  It  may  be  added,  that  while  every  one 
who  has  an  interest  in  lands  in  possession,  may,  at  common 
law,  transfer  the  same,  and  only  such  may  lease  lands,  it  is 
competent,  under  the  statute  of  uses,  to  convey  lands,  so  that 
the  seisin  shall  be  in  one,  with  an  authority  in  another  to 
create  a  leasehold  interest  in  a  third  person,  by  appointing  or 
declaring  who  this  third  person  or  lessee  shall  be.  The  au- 
thority to  do  this  is  called  a  Power,  the  exercise  of  which  has 
the  same  effect  in  creating  a  lease  in  the  lessee,  as  if  he  M^ho 
has  the  power  had  an  interest  in  the  land  as  well  as  the  power, 
although  he  has  none.  Of  this  character  are  the  powers  ordi- 
narily inserted  in  marriage  settlements,  whereby  tenants  for 
life  are  authorized  to  create  leases  which  shall  extend  beyond 
the  period  of  such  tenant's  own  estate.^  The  person  named 
or  appointed  derives  his  estate  from  and  under  the  original 
deed  conveying  the  seisin,  the  donee  of  the  power  being  the 
medium  only,  through  which  it  is  ascertained  in  whose  favor 
the  lease  shall  take  effect.^  Such  a  power  as  is  above  supposed 
is  something  distinct  from  a  power  of  attorney,  by  which  an 
agent  is  authorized  to  make  a  lease.  It  is  not  necessary  to 
add  to  what  has  already  been  said  on  the  subject  of  agents, 
except  to  say  that  where  one  without  authority  acts  in  the 
name  of  another  in  leasing  his  lands,  and  the  lessee  enters 
upon  and  occupies  the  same  under  the  lease,  if  the  one  named 

as  principal  sees  fit  to  avail  himself  of  the  lease,  the  les- 
[*309]  see  will  be  estopped  to  deny  that  the  agent  acted  *  with 

authorit}^^  nor  could  he  deny  such  agency  against  an 
assignee  of  lessor  who  should  sue  thereon  for  the  rent.'* 

12.  From  the  nature  of  the  estates  of  tenants  in  common, 
their  seisins  being  separate  and  distinct  though  their  j)ossession 
is  one,  each  must  demise  his  own  share  distinct  from  the  other, 

1  Post,  vol.  2,  p.  *  30'j. 

2  Smith,  Land.  &  Ten.  43,  44 ;  Wms.  Real  Prop.  254,  Rawle's  ed.,  n. ;  2  Crabb, 
Real  Prop.  769 ;  Maundrell  v.  JIaundrell,  10  Ves.  256.     Post,  vol.  2,  p.  *306. 

3  McClain  v.  Doe,  5  Ind.  237.  *  Kendall  v.  Garland,  5  Gush.  74. 


CH.  X.  §  2.]  ESTATES    FOR   YEARS.  461 

though  the  covenants  in  the  leases  in  which  they  join  in  de- 
mising their  common  Land  may  be  so  framed  as  to  become 
joint.  But  unless  expressly  made  so,  they  will  be  construed 
to  be  separate  according  to  their  respective  interests.^  If  the 
letting  be  a  joint  one,  and  one  lessor  dies,  the  survivor  may 
recover  the  entire  rent  reserved. ^  But  one  of  two  partners 
cannot  lease  partnership  property  so  as  to  bind  his  copartner.^ 
And  where  one  of  several  partners  let  his  estate  to  the 
company,  to  be  used  in  the  business  of  the  firm,  and  the  part- 
nership was  dissolved  by  the  death  of  one  of  its  members, 
the  lease  was  held  to  be  thereby,  ipso  facto,  determined.  But 
it  would  be  otherwise  if  the  lease  was  from  a  third  person.* 
Thus,  where  one  leased  premises  to  a  partnership  for  three 
years  with  a  covenant  to  renew  the  lease  for  two  years  if  les- 
sees gave  notice  during  the  three  years,  and  one  of  the  part- 
ners died  during  that  term,  and  the  survivor  gave  notice  of  his 
wish  to  renew  the  lease,  it  was  held,  that,  as  survivor,  he  had 
a  right  to  insist  upon  the  renewal.  It  was  not  the  assump- 
tion of  a  new  debt,  which  a  surviving  partner  has  no  right  to 
make.^  A  lease  made  by  one  partner  in  the  company  name 
was  held  to  be  binding  upon  both  where  the  other  partner 
attested  the  lease. ^ 

13.  As  to  who  may  be  lessees,  there  is  less  limitation  than 
in  respect  to  lessors.  In  general  terms,  any  one  may  be  made 
a  lessee,  although  every  one  may  not  be  capable  of  entering 
into  covenants  as  a  lessee.  Thus  lunatics  and  drunkards 
may  be  made  lessees,  because,  jjrima  facie,  it  is  a  beneficial 
act  for  them."  So  a,  feme  covert  may  be  made  a  lessee.^  And 
an  infant  may  not  only  be  a  lessee,  but,  if  the  hiring  may  be 
considered  in  law  as  necessary,  he  will' be  bound  to  pay  rent;^ 
and  if  he  continues  to  retain  the  leased  premises  after  coming 

1  Mantle  V.Wellington,  Cro.  Jac.  166;  Heatherly  v.  Weston,  2  Wils.  232; 
1  Piatt,  Leases,  131 ;  Beer  v.  Beer,  12  C.  B.  80  ;  Smith,  Land.  &  Ten.  49,  n. 
-  Codman  v.  Hall,  9  Allen,  338.  3  piUon  v.  Brown,  11  Gray,  180. 

*  Johnson  v.  Hartshorn,  52  N.  Y.  173. 
5  Betts  V.  June,  51  N.  Y.  274,  279.  6  Bussman  v.  Gunster,  72  Penn.  289. 

7  Co.  Lit.  2  b  ;  1  Piatt,  Leases,  530. 

8  1  Piatt,  Leases,  631 ;  Co.  Lit.  3  a ;  but  she  may,  when  discovert,  disarow 
and  defeat  the  lease,  nor  does  this  apply  to  married  women  whose  husbands  have 
abjured  the  realm. 

9  Lowe  V.  Griffith,  1  Scott,  460 ;  Smith,  I.^nd.  &  Ten.  54, 


462  LA.W  OF  EEAL  PROPERTY.  [BOOK  I. 

of  age,  Lej'ond  a  reasonable  time  in  which  to  disaffirm  it,  he 
will  thereby  affirm  the  lease  and  render  it  binding. ^  The  con- 
clusion to  be  drawn  from  the  cases  seems  to  be,  that  hiring  a 
tenement  for  carrying  on«business  beyond  a  manual  occupation 
by  which  he  gains  a  living,  would  not  be  necessary  in  the  eye 
of  the  law.  But  a  barber,  for  instance,  might  hire  a  suitable 
shop,  or  a  student,  while  obtaining  an  education,  a  lodging- 
room,  which,  under  the  circumstances,  might  be  necessary  for 
him,  and  render  him  liable  for  the  rent  accordingly.  And  of 
this  the  jury  is  to  judge.  In  Lowe  v.  Griffith,  Parke, 
[*310]  J.,  said,  "What  *are  necessaries  must,  in  all  cases, 
depend  upon  the  station  and  circumstances  of  the 
party." 

14.  If,  now,  it  is  inquired  what  may  be  leased  or  demised 
in  the  manner  and  by  the  parties  above  mentioned,  it  ma}^  be 
said,  in  general  terms,  to  be  only  what  might  have  passed  by 
livery  of  seisin  at  common  law,  such  as  lands,  houses,  and  the 
like,  or,  in  other  words,  corporeal  hereditaments.  On  the 
other  hand,  though  contracts  in  respect  to  incorporeal  heredit- 
aments may  be  good  as  contracts,  they  do  not  create  the 
relation  of  landlord  and  tenant  as  ordinarily  understood.^ 
But  where  one,  owning  land  to  which  a  right  of  way  was  ap- 
purtenant, leased  the  premises,  the  law  reserved  to  him  the 
right  to  make  use  of  the  way  so  far  as  it  was  necessary  to  enter 
to  view  waste,  demand  rent,  and  remove  obstructions  from  the 
premises.^  It  is  indeed  true  that  goods  and  chattels  may  be 
leased  for  years.^  But  in  a  treatise  upon  real  estate,  such 
leases  may  be  properly  omitted.  There  are,  however,  many 
contracts  in  relation  to  interests  in  lands,  which  acquire  more 
or  less  of  the  character  of  leases  of  real  estate,  especially  in 
the  matter  of  covenants,  although  the  interests  are  incorporeal, 
as  a  right  of  wharfage,^  a  right  of  flowage  of  lessor's  lands, 

1  Holmes  v.  Blogg,  8  Taunt.  35,  where  holding  four  montlis  after  age  was 
held  to  be  an  affirmance  of  tlie  lease.  Ketsey's  case,  Cro.  Jac.  320;  Doe  v. 
Smith,  2  T.  R.  436,  witliin  a  week  or  fortnight  would  be  reasonable. 

2  Smith,  Land.  &  Ten.  58.  3  Wash.  Ease.  3d  ed.  257. 

4  Com.  Dig.  Land.  &  Ten.  1.3;  Mickle  v.  Miles,  31  Penn.  St  20. 

5  Mayor  v.  Mabie,  3  Kern.  151  ;  Smith  v.  Simons,  1  Root,  318;  Wallace  v. 
Headley,  23  Penn.  St.  106,  wliere  the  demise  was  of  the  lands  which  might  be 
flowed  by  a  dam  of  certain  dimensions. 


CH.  X.  §  2.]  ESTATES    FOR   YEARS.  463 

and  the  like,^  where  many  of  the  rules  adapted  to  leases  of 
corporeal  hereditaments  are  applied.  It  has  accordingly  been 
held  that  a  lease  by  a  widow  of  her  right  of  dower,  before 
the  same  has  been  set  out  to  her,  is  invalid.^ 

15.  Though,  as  has  been  already  stated,  a  term  for  years, 
when  created,  is  but  a  chattel  interest  in  lands,  however  long 
may  be  its  duration,^  in  some  of  the  States  long  terms  have 
had  annexed  to  them,  by  statute,  the  properties  of  freehold 
estates  of  inheritance.  Thus,  for  instance,  in  Massachusetts, 
if  the  original  term  be  for  an  hundred  or  more  years,  it  is 
deemed  a  fee  so  long  as  fifty  years  remain  unexpired.*  So  in 
Ohio,  perpetual  leases,  or  those  renewable  forever,  though  in 
law  estates  for  years  only,  are  by  statute  regarded  as  real  es- 
tate, so  far  as  judgments  and  executions  are  concerned. 

So  *  also  as  to  descent  and  distribution,  they  are  re-  [*311] 
garded  freehold  estates.^ 

16.  This  power  of  creating  terms  of  any  number  of  years, 
still  retaining  their  chattel  character,  especiall}''  in  respect  to 
descent  and  distribution,  gave  rise,  in  England,  to  a  mode  of 
raising  money  upon  lands,  in  favor  of  particular  branches  of 
the  family  of  the  owner,  such  as  his  daughters  or  j^ounger 
sons,  without  interfering  with  the  title  to  the  inheritance. 
One  mode  of  doing  this  was  by  mortgaging  the  estate  for  a 
long  term  of  years,  for  the  purpose  of  raising  portions  for  others 
than  the  heir,  which  was  generally  done  through  the  medium 
of  trustees,  the  legal  property  in  the  term  being  vested  in  such 
trustees  as  mortgagees.  So  it  might  be  done  by  a  marriage 
settlement,  where  a  term  was  created  and  given  to  trustees. 
The  powers  and  duties  of  the  trustees,  as  well  as  the  nature  of 
the  trusts,  were  expressed  in  the  deed.  But,  generally,  these 
were  only  to  take  possession  of  the  estate,  or  sell  so  much  of 
the  term  as  was  necessary  if  the  money  intended  to  be  raised 
was  not  paid,  and  in  the  mean  time,  the  grantor  of  the  term, 
or  his  heir,  remained  in  possession  as  the  freeholder  of  the 

1  Provost  V.  Calder,  2  Wend.  217,  case  of  a  lease  of  a  stream  of  water,  and 
privilege  of  erecting  a  dam,  &c. 

2  Croade  v.  Ingraham,  13  Pick.  33.  *  1  Piatt,  Leases,  3. 
*  Mass.  Gen.  Stat.  c.  90,  §§  20-23. 

6  Rev.  Stat.  1841,  p.  289;  Walker,  Am.  Law,  279;  Northern  Bank  of  Ken- 
tucky V.  Roosa,  13  Ohio,  334. 


464  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

lands,  w-hicli  he  could  sell  or  devise  subject  to  this  mortgage, 
or  the  same  would  descend  to  his  heirs.  It  was  often  provided 
that  the  term  should  cease  as  soon  as  the  money  was  raised, 
in  which  case  by  the  payment,  this  lease,  by  way  of  mortgage, 
became,  ipso  facto^  null.  Or,  if  no  such  provision  was  inserted 
in  the  deed,  the  trustees  might  release  to  the  holder  of  the 
freehold,  and  thereby  terminate  the  estate  Avhich  had  been  in 
the  trustees,  since  the  term  would  at  once  merge  in  the  free- 
hold. To  do  this  now  in  England  requires  the  lease  to  be  by 
deed.  If  there  was  no  provision  in  the  deed  by  which  the  term 
became  void  upon  the  payment  of  the  money,  and  no  release 
was  made  by  the  trustees  to  the  freeholder,  the  effect  was  to 
leave  a  legal  estate  in  the  term  still  outstanding  in  the  trustees, 
though  the  money  might  have  been  raised  or  paid,  or  the  pur- 
pose answered,  for  which  the  term  had  been  created. 
[*312]  There  was,  ordinarily,  no  *  practical  inconvenience  in 
this,  for  it  could  be  no  object  in  the  trustees  to  enter 
upon  and  occup}^  the  premises,  since  by  so  doing  they  would 
be  liable  to  be  called  upon  in  equity  to  account  for  the  rents 
and  profits  they  might  receive,  to  him  who  had  an  equitable 
right  to  them,  who,  in  the  case  supposed,  was  the  owner  of  the 
freehold.  The  practical  operation  of  this  was,  that  one  might 
own  the  freehold,  while  the  legal  estate  or  ownership  of  the 
term  was  in  trustees,  and  this  took  the  name  of  a  "  satisfied 
outstanding  term."  This  became  a  verj'-  common  mode  of 
protecting  the  estate  of  a  rightful  owner  of  the  freehold,  where 
there  happened  to  be  conflicting  claims  to  the  same.  As  for 
instance,  a  purchaser  of  an  estate  in  fee,  without  notice  of  any 
incumbrance  upon  it,  finds  there  is  an  existing  outstanding 
charge  or  mortgage.  In  order  to  protect  himself  from  this,  he 
gets  the  trustees  of  some  such  outstanding  term  to  assign  the 
same  to  other  trustees  to  hold  for  his  benefit.  The  effect  is, 
that  if  the  legal  right  of  the  trustees  to  the  term  is  prior  to  that 
of  any  one  claiming  this  charge  upon  the  freehold,  these  trus- 
tees may  enter  and  hold  possession  and  account  for  the  rents, 
or  suffer  the  purchaser  for  whom  they  hold  to  take  them,  and 
thus  postpone  the  other  claimants  until  tlie  term  shall  have 
expired,  the  term  in  the  mean  time  attending  and  preserving 
the  possession  of  the  premises  for  the  owner  of  the  freehold. 


CH.  X.  §  2.]  ESTATES    FOR    YEARS.  465 

This  is  called  "  an  outstanding  term  to  attend  the  inheritance." 
And,  by  reason  of  the  want  of  notice,  by  means  of  registration, 
of  the  making  of  charges,  mortgages,  and  conveyance  of  lands, 
this  mode  of  protecting  an  innocent  purchaser  by  means  of  an 
outstanding  term  to  attend  the  inheritance,  came  to  be  very 
general  prior  to  the  8  &  9  Vict.  c.  112,  §  2,  which  abolished 
all  such  terms  as  soon  as  satisfied.  In  speaking  of  such  terms, 
Lord  Mansfield  says,  "The  lease  is  one  of  his  [the  owner's] 
muniments.  No  man  has  a  lease  of  2,000  years  as  a  lease,  but  as 
a  term  to  attend  the  inheritance.     Half  the  titles  in  the  kinof- 

o 

dom  are  so."  ^  It  cannot,  however,  be  profitable  to  de- 
vote time  to  considering,  what  occupies  so  much  *  space  [*313] 
in  treatises  upon  the  English  law  prior  to  the  reign  of 
Victoria,  which  of  several  claimants  might,  in  certain  cases, 
insist  upon  availing  himself  of  a  satisfied  outstanding  term,  or 
when  courts  of  law  and  equity  will  presume  a  surrender  and 
extinguishment  of  such  terms  to  have  been  made,  since  they 
not  only  have  been  abolished  in  England,  but  were  never, 
practically,  apjDlied  in  this  countr}'-  to  any  considerable  extent, 
if  at  all.  Indeed,  with  the  universal  custom  of  registering 
deeds,  it  is  not  easy  to  see  any  occasion  or  principle  of  aj^plica- 
tion  for  any  such  theory  as  gave  rise  to  these  terms,  originally, 
in  England.2  The  terms  here  spoken  of,  are,  moreover,  so  un- 
like leasehold  terms  for  years,  wherein  there  is,  properly,  the 
relation  of  landlord  and  tenant,  with  its  reciprocal  rights  and 
duties,  that  it  only  seemed  proper  to  refer  to  them  at  all,  as 
being  one  species  of  estates  for  years. 

17.  To  recur,  then,  to  leasehold  estates.  With  the  excep- 
tions created  by  statute,  estates  for  years  have  the  properties 
of  chattel  interests,  however  long  they  may  be  to  endure,  such 
as  merging  in  the  freehold,  descending  to  personal  represen- 
tatives instead  of  heirs,  not  being  subject  to  dower,  passing  by 

1  Cowp.  597.  See  also  Burton,  Real  Prop.  §§  858-860 ;  Co.  Lit.  290  b,  But- 
ler's note.  249,  §  13;  Wms.  Real  Prop.  3.38-445;  4  Kent,  Com.  87-93;  Hill, 
Trust.  326.     See  Sugd.  Vend.  c.  15;  Willoughby  v.  Willoughby,  1  T.  R.  763. 

2  4  Kent,  Com.  93  ;  Hill,  Trust.  327.  See  Williamson  v.  Gordon,  5  Munf.  257, 
where  a  purchaser  who  had  satisfied  an  outstanding  trust  was  permitted  to  avail 
himself  of  it  in  equity. 

VOL.   I.  80 


466  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

a  will,  and  being  liable  to  be  sold  as  personal  property,  and  the 
like.i 

18.  But  to  guard  against  fraud  upon  purchasers  in  buying 
lands  subject  to  leases,  many  of  the  States  require  them  to  be 
registered,  to  be  effectual  against  subsequent  purchasers  with- 
out notice  ;  or  creditors,  if  they  exceed  a  prescribed  length  of 

time.  This  in  Massachusetts  is  seven  years,-  in  Ken- 
[*314]  tucky  five,^  *  New  Hampshire  seven,*  Delaware  twen- 
ty-one years,  if  for  a  fair  rent  accompanied  by  posses- 
sion,^ Maine  seven  years,^  Michigan  the  same,'^  Ohio  and  New 
York  three,^  Rhode  Island  one,^  and  in  North  Carolina  all 
leases,  required  to  be  in  writing,  must  be  recorded.^'' 

19.  To  Avhat  has  been  said,  it  may  be  added,  that  if  the 
language  and  consideration  expressed  in  a  lease  are  sufficient 
to  raise  a  use,  the  Statute  of  Uses  comes  in  and  annexes  the 
possession  to  the  use,  for  most  purposes,  without  an  actual 
entry  by  the  lessee. ^^ 

20.  And  as  soon  as  the  lessee  shall  have  entered  under  a 
written  lease,  the  lessor  is  so  effectually  divested  of  the  pos- 
session that  he  cannot  maintain  trespass  against  a  stranger 
who  should  enter  and  cut  trees  upon  the  premises,  although 
the  tenant  himself  is  restricted  from  cutting  them,^^  though, 
had  he  excepted  them  in  his  lease,  he  might  have  maintained 

1  Ex  parte  Gay,  5  Mass.  419 ;  Chapman  v.  Gray,  15  Mass.  445 ;  Spangler  v. 
Stanler,  1  Mrl.  Ch.  Dec.  36;  Brewster  v.  Hill,  1  N.  H.  350;  Murdock  v.  RatelifE, 
7  Ohio,  119  ;  Bisbee  v.  Hall,  3  Ohio,  449 ;  Dillingham  v.  Jenkins,  7  S.  &  M.  479. 
The  constitution  of  New  York  has  abolished  all  long  leases  of  agricultural  land, 
limiting  them  to  twelve  years.  4  Kent,  Com.  93,  8th  ed.,  note.  It  is  usual  in  a 
lease  to  demise  to  the  lessee,  "his  executors  and  administrators,"  but  such  words 
of  limitation  are  unnecessary.     Burton,  Real  Prop.  §  849. 

2  Gen.  Stat.  c.  89,  §  3 ;  Chapman  v.  Gray,  15  Mass.  439.  Must  not  exceed 
seven  years  from  making  of  the  lease. 

3  Locke  V.  Coleman,  4  Mon.  315.  *  Brewster  v.  Hill,  1  N.  H.  350. 
5  Thornton,  Conv.  125.  6  Rev.  Stat.  Me.  c  73,  §  8. 

7  Rev.  Stat.  Mich.  1838,  260. 

8  Ohio,  1  Rev.  Stat.  461 ;  N.  Y.  1  Stat,  at  Large,  pp.  707-714. 

9  Gen.  Stat.  1872,  p.  350. 

10  Rev.  Code,  N.  C.  c.  37,  §  26.  These  citations  are  given  rather  by  way  of 
illustration  than  as  a  full  statement  of  the  several  laws  on  the  subject. 

11  4  Kent,  Com.  97 ;  1  Cruise,  Dig.  249 ;  2  Sand.  Uses,  56.     Ante,  p.  *296. 
J2  Greber  v.  Kleckner,  2  Penn.  Stat.  289. 


CH.  X.  §  2.]  ESTATES    FOR   YEARS.  467 

trespass  for  cutting  thera.i  In  the  former  case,  the  tenant 
niiglit  have  trespass  for  the  cutting  of  the  trees,  if  done  by  a 
stranger,  and  the  owner  of  the  inheritance  trover  for  the  value 
of  them. 2  But  the  lessor  would  have  no  right  to  enter  upon 
the  premises,  although  the  lessee  should  have  actually  left 
and  abandoned  possession  of  the  same.^  Questions  similar 
to  those  respecting  trees  have  arisen  in  relation  to  min- 
erals in  the  earth,  where  the  soil  has  been  leased,  and 
no  reserve  of  these  has  been  made.  If  no  mine  had  been 
opened  within  the  premises,  the  lessee  had  no  right  to 
work  the  minerals,  and  had  he  done  so  he  would  be  liable 
in  waste,  but  not  in  trespass  ;  whereas,  had  another  entered 
and  worked  these,  or  dug  any  of  them,  though  without  break- 
ing the  surface,  the  tenant  might  have  trespass  against  him. 
So  if,  in  the  case  supposed,  a  lease  were  made  of  the  minerals 
to  the  tenant  of  the  surface  and  another,  the  possession  of  the 
tenant  would  enure  to  both  lessees  of  the  minerals,  and  create 
an  actual  estate  and  not  a  mere  interesse  termini  therein,  and 
they  might  work  the  mines.*  The  general  rights  of  lessees 
of  lands,  in  which  there  are  minerals,  are  these.  If  there  is  an 
open  mine  on  the  premises,  they  may  work  it.  But  they  ma}^ 
not  open  a  new  one,  unless  a  right  to  do  so  is  expressly  granted. 
And  if  the  land  and  mines  under  it  are  described  as  the  sub- 
jects of  the  lease,  and  there  be  no  open  mine,  the  lessee  may 
open  one  and  work  it.^ 

21.  So  far  as  liability  upon  his  covenants  is  concerned,  debt 
or  covenant  will  lie  against  a  lessee  who  has  accepted  a  lease, 
notwithstanding  he  may  not  have  entered.  The  privity  of 
contract  between  lessor  and  lessee  is  complete  without  entry ,^ 
while  the  privity  of  estate  depends  upon  the  entry  having 
been  made."     And  though  a  lessee,  by  assigning  his  interest, 

1  Schermerhorn  r.'Buell,  4  Denio,  422;  Reynolds  v.  Williams,  1  Texas,  311  j 
Van  Rensselaer  v.  Van  Rensselaer,  9  Johns.  377. 

2  Burnett  v.  Thompson,  6  Jones,  L.  213. 
8  Shannon  v.  Burr,  1  Hilton,  39. 

<  Keyse  v.  Powell,  2  Ellis  &  B.  132;  Lewis  v.  Branthwaite,  2  B.  &  Ad.  437. 
6  Clegg  V.  Rowland,  L.  R.  2  Eq.  Cas.  160 ;  Co.  Lit.  54  b. 
6  Salmon  i:  Smith,  1  Saund.  203,  n.  1 ;  Bellasis  v.  Burbricho,  1  Salk.  209. 
■^  Eaton  v.  Jaques,  Doug.  4.55-461.     The  point  decided  was,  that  a  mortgagee 
of  a  term  would  not  be  liable  upon  the  covenants  in  the  lease  creating  it,  until 


468  LAW   OF   REAL   PROPERTY.  [BOOK  I. 

[*315]  destroys  *this  privity  of  estate,  he  still  remains  liable 
on  his  contract. 

22.  In  all  these  cases,  in  order  to  charge  a  party,  under  an 
instrument,  as  being  bound  by  it,  it  is  essential  to  show  his 
acceptance  of  it,^  though,  where  it  is  obviously  for  his  benefit, 
such  an  acceptance  will  often  be  presumed.^  And  his  ac- 
ceptance may  often  be  inferred  from  his  acts.  As  where,  by 
the  terras  of  his  lease  for  three  years,  the  tenant  had  a  right 
to  hold  for  two  more,  but  at  an  enhanced  rent,  and  he  con- 
tinued to  hold  after  the  expiration  of  the  three  years,  and  paid 
the  enhanced  rent  for  one  or  two  quarters,  it  was  held  to  be 
such  an  election  as  bound  him  for  the  whole  term.^  And  it 
may  be  stated  in  this  connection,  that  a  lease  of  premises 
hired  for  unlawful  purposes,  such,  for  instance,  as  those  of 
prostitution,  where  the  lessor,  knowing  this,  aids  the  lessee  in 
anj^  way  in  accomplishing  his  purpose,  would  be  void.  But 
the  mere  knowledge  on  the  part  of  the  lessor  that  the  prem- 
ises are  intended  to  be  used  for  such  purposes,  unless  he  par- 
ticipates in  the  design,  does  not  render  the  lease  void.  If  the 
house  is  so  used  by  the  tenant,  the  lessor  may  enter  and  oust 
him. 4 

23.  It  now  becomes  proper  to  restate,  that  as  soon  as  proper 
parties  have  entered  into  an  agreement,  in  proper  form,  in  rela- 
tion to  lands  or  tenements,  to  create  an  estate  for  years,  by 
one  in  favor  of  the  other,  it  constitutes  the  relation  known  to 
the  law  as  that  of  landlord  and  tenant,  as  soon  as  the  tenant 
shall  have  entered.^  The  lessor  and  lessee  thereby  become 
bound  to  one  another  in  resj^ect  of  covenants  in  laiv^  and  the 
duties  prescribed  in  law,  as  incident  to  that  relation  hj-  reason 

entry  made.  Williams  v.  Bosanquet,  1  Brod.  &  B.  238  ;  4  Kent,  Com.  175.  Com. 
Land.  &  Ten.  271,  however,  lays  it  down  unqualifiedly,  "Immediately  upon  the 
assignment  being  made,  the  assignee  becomes  liable  even  before  his  entry 
upon  the  premises."  The  subject  is  further  examined  in  another  part  of  this 
chapter.     Post,  *340. 

1  Jackson  v.  Richards,  6  Cow.  617 ;  Sheppard,  Touch.  1st  Am.  ed.  57  ;  Jack- 
son V.  Dunlap,  1  .Johns.  Cas.  114  ;  Maynard  v.  Maynard,  10  Mass.  456;  Hedge 
V.  Drew,  12  Pick.  141  ;  Hatch  v.  Hatch,  9  Mass.  307. 

^  Jackson  v.  Bodle,  20  Johns.  184.  3  Kramer  v.  Cook,  7  Gray,  5-50. 

*  Updike  V.  Campbell,  4  E.  D.  Smitli,  570;  O'Brien  v.  Brietenbach,  1  Hilton, 
304 ;  Ralston  v.  Boody,  20  Ga.  429 ;  Commonwealth  v.  Harrington,  8  Pick.  26. 

'  Smith,  Land.  &  Ten.  3. 


CH.  X.  §  2.]  ESTATES    FOR   YEABS.  '     469 

of  a  privity  of  estate.  In  respect  to  covenants  in  deed,  they 
are  bound  by- a  privity  of  contract,  and  the  prlvitt/  of  estate 
exists  no  longer  than  the  rehition  of  hmdlord  and  tenant  con- 
tinues.^ 

24.  There  is  a  tenure  between  lessor  and  lessee  for  years, 
to  which  fealty  is  incident,  by  theory  of  law,  as  well  as  a  priv- 
ity of  estate  between  thera.^ 

25.  Such  relation  implies  a  tenancy  limited  in  point  of  time, 
and  not  so  extensive  in  duration  as  to  render  the  landlord's 
interest  practically  worthless,  and  accompanied  by  some  re- 
munerative incidents  to  the  reversion,  such  as  rent,  or  some- 
thing which  is  a  substitute  for  it,  as  well  as  certain  obligations 
which  have  already  been  referred  to."^  But  this  relation  of 
landlord  and  tenant  does  not  embrace  that  between  sovereign 
and  subject,  nor  between  a  reversioner  and  him  who  enjoys 
the  particular  estate  on  which  the  reversion  depends, 
where  no  rent  is  reserved,  *  although  a  kind  of  ten-  [*316] 
ancy  subsists  between  them.*  Nor  does  it  exist  be- 
tween mortgagor  and  mortgagee,^  or  vendor  and  vendee  in 
possession,^  nor  licenser  and  licensee,  since  a  license  may 
always  be  revoked  so  far  as  it  extends  to  the  occupation  of 
the  licenser's  land.'''  If  there  is  a  written  lease  between  the 
parties,  and  rent  is  clue  under  it,  the  lessor  cannot  recover 
this  rent  in  an  action  for  use  and  occupation,^  the  principle 
in  sucli  case  being,  that  expressum  facit  cessare  taciturn. 
So  that  neither  the  court  of  equity  nor  a  court  of  law  could 
aid  a  party  in  such  a  case  to  any  greater  extent  than  is  pro- 
vided for  in  the  lease.^ 

1  Com.  Land.  &  Ten.  275 ;  1  Cruise,  Dig.  223. 

2  Lit.  §  132. 

3  Smith,  Land.  &  Ten.  4.  *  Smith,  Land.  &  Ten.  3. 
s  Coote,  Mortg.  332  ;  Id.  372. 

6  Redden  v.  Barker,  4  Barring.  179  ;  Doolittle  v.  Eddy,  7  Barb.  74;  Watkins 
V.  Holnian,  16  Pet.  54  ;  Jackson  v.  Miller,  7  Cow.  747 ;  Stone  v.  Sprague,  20  Barb. 
509. 

7  Doolittle  V.  Eddy,  7  Barb.  74 ;  Stone  v.  Sprague,  20  Barb.  509. 

8  Warren  v.  Ferdinand,  9  Allen,  357.  By  Gen.  Stat.  c.  90,  §  26,  rent  may  be 
recovered  by  action  of  contract ;  and  the  deed  of  demise  or  other  instrument  in 
writing,  if  there  is  any,  showing  the  provisions  of  the  lease,  may  be  used  in 
evidence  to  prove  the  amount  of  rent  due. 

9  Sheets  v.  Selden,  7  Wallace,  424. 


470  LAW   OF   REAL   PROPERTf.  [BOOK   I. 


SECTION  III. 

OF   CONDITIONS   IN   LEASES. 

1.  How  tlie  law  regards  these  and  tlieir  use. 

2.  Effect  of  license  to  violate  a  condition. 

3.  Condition  not  broken  by  involuntary  act. 

4.  Assignment  of  condition  under  32  Hen.  VIII.  c.  34. 
6.  Condition  if  broken  not  assignable. 

6.  All  covenants  may  be  guarded  by  conditions. 

7.  Of  entry  for  condition  broken  and  its  effect. 

8.  Conditions  strictly  construed,  illustrations  of. 

9.  What  required  to  take  advantage  of  a  condition. 

10.  What  demand  must  be  made  of  rent,  &c. 

11.  Demand  may  be  waived. 

12.  Advantage  of  condition  taken  only  by  entry. 

13.  When  forfeiture  may  be  saved,  by  tender,  &c. 

14.  When  forfeiture  waived  by  lessor. 

15.  When  demand  necessary  before  a  forfeiture. 

16.  Tender  of  rent  in  court  saves  forfeiture,  &c. 

Before  proceeding  to  consider  the  obligations  ordinarily 
existing  between  lessor  and  lessee,  some  of  which  are  created 
bv  the  express  terms  of  their  agreement,  and  some  implied 
from  the  relation  of  landlord  and  tenant,  it  may  be  well  to 
refer  to  some  of  the  conditions  which  are,  ordinarily,  annexed 
to  every  term  for  years.  And  by  condition  is  meant,  in  the 
words  of  Blackstone,  "  a  clause  of  contingency  on  the  hap- 
pening of  which  the  estate  granted  may  be  defeated."  ^  Nor 
is  it  necessary,  in  order  to  a  lessor  availing  himself  of  a  condi- 
tion in  defeating  an  estate,  that  such  breach  was  the  cause  of 
damage  to  him.^  The  word  condition  does  not,  necessarily, 
imply  a  condition  under  seal.^ 

1.  Though  the  proposition  may  be  better  understood  when 
the  nature  of  conditional  estates  shall  have  been  explained,  it 
may  be  observed,  that  such  conditions  as  are  annexed  to  es- 
tates for  years,  are,  as  a  general  thing,  more  favored  by  the 
law  than  those  which  tend  to  defeat  a  freehold  estate,  as,  for 
instance,  a  grant  to  one  of  a  fee,  with  a  condition  that  he 
should  not  alien  his  estate  to  any  one,  would  be  void,  though 
such  a  condition  annexed  to  the  estate   of  a  lessee  for  years 

1  2  Black.  299.  ^  Whitwell  v.  Harris,  106  Mass.  532. 

»  Hayne  v.  Cummings,  16  C.  B.  n.  s.  427. 


CH.  X.  §  3.]  ESTATES    FOR   YEARS.  471 

might  be  good.^  So  a  stipulation  in  a  lease  is  a  valid  one, 
that  the  crops  shall  be  the  lessor's  until  the  rent  is  paid,  bind- 
ing not  only  the  parties  to  the  contract,  but  third  parties 
also.2  But  the  words  of  reservation  in  a  lease  of  "  yielding  " 
and  "  paying  "  may  attach  a  condition  to  a  fee.^  And  in  this 
way  it  is  often  a  means  of  securing  the  performance  of  stipu- 
lations in  a  lease,  to  make  such  performance  a  condition  for 
the  breach  of  which  the  lessor  may  enter  and  defeat  the 
lessee's  estate,  or,  as  is  sometimes  the  case,  the  lease 
*  is  to  cease  and  become  void,'*  which  means,  however,  [*317] 
at  the  option  of  the  landlord.^  But  where  there  is  a 
covenant  in  a  lease  to  pay  rent  on  certain  days,  and  a  condi- 
tion that  if  the  same  was  unpaid  the  lessor  might  enter  and 
hold  possession  till  the  arrears  of  rent  were  paid,  it  was  held  to 
be  no  bar  to  an  action  upon  the  covenant  to  pay  the  rent  as 
soon  as  the  same  was  in  arrear.  Nor  would  an  agreement  in 
the  lease  to  refer  all  questions  in  dispute  between  the  lessor 
and  lessee  to  arbitration  be  a  bar  to  a  suit  upon  a  covenant  in 
the  lease,  although  the  covenanter  has  not  offered  to  submit 
the  question  to  arbitration.^ 

2.  If  such  a  condition  were,  for  instance,  not  to  do  some 
particular  act  by  the  lessee,  such  as  aliening  his  term  without 
lessor's  assent,  and  the  latter  were  to  give  an  express  license 
to  the  lessee  to  do  this,  the  right  to  enforce  it  as  to  any  subse- 
quent breach  would  be  gone  forever.  This  was  first  applied 
in  Dumpor's  case,  and  is  based  upon  the  notion  that  every 
condition  of  re-entry,  which  is  the  apj^ropriate  mode  by  which 
the  breach  of  condition  in  a  deed  or  lease  is  made  to  be  avail- 
able, is  an  entire  and  indivisible  thing,  and,  having  been  once 
waived,  cannot  be  enforced  again.'''     And  so  far  has  this  been 

1  Burton,  Real  Prop.  §  852. 

2  Cooper  V.  Cole,  38  Vt.  191  ;  Smith  v.  Atkins,  18  Vt.  461. 

3  Van  Rensselaer  i-.  Smith,  27  Barb.  104. 

4  Wms.  Real  Prop.  332 ;  Smith,  Land.  &  Ten.  108. 

5  Smith,  Land.  &  Ten.  112 ;  Jones  v.  Carter,  15  M.  &  W.  718  ;  Clark  v.  Jones, 
1  Denio,  516.  6  Rowe  v.  Williams,  97  Mass.  165. 

1  Dumpor's  case,  4  Rep.  119;  Cartwright  v.  Gardner,  5  Cusli.  281 ;  Wms. 
Real  Prop.  332 ;  1  Smith,  Lead.  Cas.  5th  Am.  ed.  85  ;  Burton,  Real  Prop.  §  853 ; 
Doe  V.  Bliss,  4  Taunt.  735;  Dickey  v.  McCulloush,  2  Watts  &  S.  88;  Bleecker 
V.  Smith,  13  Wend.  530;  Smith,  Land.  &  Ten.  117;  Chipman  v.  Hmeric.  5  Cal. 
49;  McKildoe  v.  Darracott,  13  Gratt.  278;  Murray  v.  Harway,  56  N.  Y.  343. 


472  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

carried,  that,  where  the  original  lessee  had  again  come  into 
possession  of  the  estate  by  mesne  assignments,  he  took  the 
term  discharged  of  the  condition.^  But  a  mere  waiver  by  ac- 
quiescence without  any  actual  license,  as,  for  instance,  by  tak- 
ing rent  of  an  assignee  where  the  original  tenant  had  been 
restrained  from  assigning  by  a  condition  in  his  lease,  though 
it  would  ratify  such  assignment,  would  not  extend  to  future 
breaches  of  the  same  kind,  so  as  to  prevent  the  lessor's  enter- 
ing and  defeating  the  demise  for  a  new  assignment  made.^ 
If  a  breach  of  the  condition  not  to  underlet  has  been  com- 
mitted, and  the  lessor,  with  a  knowledge  of  its  having  been 
done,  accept  rent  after  such  subletting,  it  would  be  a  waiver 
of  forfeiture  for  that  act  of  underletting,  but  not  of  any  sub- 
sequent breaches  by  a  new  underletting.^ 

3.  Nor  would  a  condition  not  to  alien  be  broken,  so  as  to 
work  a  forfeiture  of  the  estate,  where  it  is  done  in  invitum,  as 
by  a  decree  in  bankruptcy,  unless,  as  may  be  done,  there  is  an 
express  condition  that  such  an  act  of  assignment  shall  form 
the  ground  of  forfeiture.*     The  term  assignee  is  very  compre- 

NoTE.  —  Dumpor's  case  has  alwaj's  been,  it  is  believed,  a  stumbling-block  in  the 
way  of  the  profession  ;  and  a  writer  of  much  discrimination,  in  an  article  in  7  Am. 
Law  Rev.  616-640,  assumes  that  the  case  "  was  ori<,nnally  without  foundation  in 
the  law  of  conditions,"  "  was  without  subsequent  conlirniation  by  decision,  until " 
Brummel  v.  Macpherson,  14:  Ves.  173 ;  that  "  it  had  no  greater  claim  to  be  recog- 
nized at  that  lime  as  settled  law  than  any  other  venerable  error;  "  that  since  that 
recognition  it  has,  with  hardly  an  exception,  been  confirmed  by  no  decision,"  and 
has  been,  with  almost  entire  uniformity,  disapproved  of  in  regard  to  the  doc- 
trine it  propounds,  and  that  "  the  idea  on  which  it  was  actually  founded  has  been 
entirely  controverted  by  modern  decisions."  The  reader  is  referred  to  the  article 
for  the  grounds  upon  which  the  writer  attempts  to  sustain  these  positions.  Fortu- 
nately the  case  is  of  rare  application,  and  in  England  the  difficulty  is  cureil  by 
the  Stat.  22  and  23  Vic.  c.  35,  §§  1,  2,  and  3,  by  which  a  license  to  do  any  thing 
which  would  be  otherwise  a  breach  of  a  condition  or  covenant  in  a  lease  will 
extend  only  to  the  specific  act  licensed  to  be  done. 

1  Doe  V.  Smith,  5  Taunt.  795. 

•^  Burton,  Real  Prop.  §  853;  Doe  v.  Bliss,  4  Taunt.  735;  Lloyd  v.  Crispe, 
6  Taunt.  249.    See  7  Am.  Law  Rev.  633. 

3  Ireland  v.  Nichols,  46  N.  Y.  413. 

*  Burton,  Real  Prop.  §  8.54  ;  Lear  v.  Leggett,  1  Russ.  &  M.  690 ;  Mitcheson  v. 
Hewson,  8  T.  R.  57  ;  Jackson  v.  Corlis,  7  Johns.  531 ;  Smitli  v.  Putnam,  3  Pick. 
221 ;  Yarnold  v.  Moorehouse,  1  Russ.  &  M.  364 ;  1  Smith,  Lead.  Cas.  1st  Am. 
ed.  66. 


CH.  X.  §  3.]  ESTATES    FOR   YEARS.  473 

hensive,  and  extends  to  all  persons  taking  the  estate  in  the  lease 
either  by  the  act  of  the  party  or  of  law.^  A  covenant  and  condi- 
tion in  a  lease  may  be  so  framed  that  neither  the  lessee  nor  his 
executors  or  administrators  can  assign  the  term.  But  to  have 
the  effect  to  restrict  an  assignment  by  executors,  it  must  be  in 
express  terms,  otherwise,  upon  the  death  of  the  lessee,  his  es- 
tate passes  to  his  executor  as  coming  into  the  place  of  the  lessee. 
In  the  language  of  the  court,  it  is  "  an  alienation  by  the  act  of 
God  ;  "  and  it  was  held  to  be  clear  law  that  the  executors  of 
such  lessee  may  dispose  of  the  term,  unless  they  are  clearly 
restricted  by  the  terras  of  the  lease.^  Of  the  same  character  is 
an  assignment  by  process  of  insolvency  against  the  lessee. 
Such  assignment  not  only  passes  the  estate,  but  passes  it  dis- 
charged of  the  covenant  not  to  assign,  if  the  proceedings  were 
hona  fide  and  not  colorable.^  Nor  by  one  member  of  a  partner- 
ship, to  whom  the  premises  are  let  with  a  condition  not  to 
alien  or  assign,  going  out  of  the  company,  and  another  coming 
in  and  taking  his  place  as  copartner.*  But  courts  are  strict 
in  construing  both  covenants  and  conditions  which  work  a  for- 
feiture. Thus  a  condition  not  to  let  or  underlet  on  the  part  of 
the  lessee  is  not  deemed  to  be  broken  by  an  assignment  of  the 
entii-e  term,  as  held  by  the  court  of  New  York,  though  the  con- 
trary was  held  by  the  court  of  New  Jersey,  following  the  rul- 
ing of  Sir  William  Grant,  Master  of  the.  Rolls.^  And  the 
ruling  in  the  last-mentioned  cases  was  expressly  overruled  in 
a  later  case  in  New  Jersey,  where  it  was  held  that  an  assign- 
ment is  not  a  breach  of  the  covenant  not  to  underlet.^  And 
the  cases  seem  to  agree  that  a  covenant  or  condition  not  to 
assign  is  not  broken  by  underletting  the  premises.  A  covenant 
not  to  assign  is  not  broken  by  an  underletting,  unless  the  un- 
derletting be  for  the  entire  term  ;  if  it  be,  it  will  be  regarded 
as    an   assignment.'^     If  one    would  restrain  his  lessee  from 

1  2  Piatt,  Leases,  410. 

2  Comyn,  Land.  &  Ten.  238;  Seers  v.  Hind,  1  Ves.  Jr.  295;  Piatt,  Leases,  265, 
266;  Taylor,  Land.   &  Ten.  §  408. 

3  Bemis   v.  Wilder,  100  Mass.  446  ;  Doe  v.  Bevan,  3  M.  &  S.  353. 

*  Roosevelt  v.  Hopkins,  33  N.  Y.  81  ;  Hargrave  v.  King,  5  Ired.  Eq.  430. 

s  Lynde  v.  Hough,  27  Barb.  415;  Den  v.  Post,  1  Dutch.  285;  Greenaway  v. 
Adams,  VI  Ves.  400.  **  Pield  v.  Mills,  4  Vroom,  254. 

7  Hargrave  o.  King,  5  Ired.  Eq.  430 ;  Beardman  v.  WilsoDj  L.  R.  4  C.  B.  57  ; 
Parraenter  v.  Webber,  8  Taunt.  593. 


47-1  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

assigning  or  underletting,  he  must  insert  words  to  that  effect  in 
the  lease. ^  Such  a  condition  as  is  above  mentioned  can  only 
be  taken  advantage  of,  if  broken,  by  the  lessor  or  his  assigns ; 
and  where  a  tenant,  holding  under  assignment  of  a  lease  con- 
taining a  condition  not  to  underlet  or  assign,  let  a  part  of  the 
premises  to  a  third  party,  it  was  held  tliat  he  could  not  set  up 
against  his  lessee,  that  the  lease  under  which  he  held  was  void. 
The  original  landlord  or  his  assigns  were  the  only  persons  who 
could  terminate  the  estate  by  an  entry  for  a  breach  of  the  con- 
dition.2  The  right  to  enter  in  order  to  enforce  a  forfeiture 
for  a  breach  of  a  condition  must  be  reserved  to  the  party  to 
the  lease  who  is  the  legal  owner  of  the  reversion,  and  not  to  a 
stranger.^  And  if  the  estate  of  the  tenant  be  one  for  life,  the 
reversioner  can  only  defeat  it  by  entry.*  But  if  it  be  for  years, 
he  may,  after  breach,  bring  ejectment  without  first  making  a 
formal  entry .^  Even  though  the  lease,  by  its  terms,  is  to  be 
void  if  the  condition  is  broken  by  the  lessee,  this  is  only  at  the 
election  of  the  lessor.^  The  lessee  could  not  set  up  in  defence 
a  breach  of  his  own  covenant  not  to  assign,  if  the  lessor  does 
not  object  to  such  assignment.'^  Conditions  restraining  the 
underletting  or  assignment  of  the  premises,  without  the  lessor's 
assent,  are  intended  solely  for  the  benefit  of  the  lessor.^  And 
this  doctrine  was  apj)lied  under  the  statute  of  Massachusetts, 
declaring  all  leases  forfeited  if  the  premises  are  used  for  illegal 
purposes.  It  constitutes  a  condition  subsequent,  of  which  the 
lessor  ma}-  avail  himself  or  not  at  his  election.  It  is,  more- 
over, a  personal  right,  which  a  purchaser  from  the  lessor  can- 
not take  advantage  of  in  respect  to  any  breaches  arising  before 

1  Den  V.  Post,  1  Dutch.  285;  Crusoe  v.  Bugby,  3  Wils.  23i.  See  1  Smith, 
Lead.  Cas.  20,  21 ;  Roe  v.  Sales,  1  M.  &  Sel.  297. 

-  Shumway  v.  Collins,  6  Gray,  231.     See  Patten  v.  Deshon,  1  Gray,  325. 

3  Sanders  v.  Merry  weather,  3  H.  &  C.  909;  Morton  v.  Woods,  L.  R.  4  Q.  B. 
303 ;  18  Am.  L.  Reg.  525;  Taylor,  L.  &  Ten.  §  293;  2  Piatt,  Leases,  318. 

*  Com.  L.  &  Ten.  327. 

5  Com.  L.  &  Ten.  327  ;  but  see  Shattuck  v.  Lovejoy,  8  Gray,  205.    Post,  *322. 

6  Jones  V.  Carter,  15  M.  &  W.  724 ;  Clark  v.  Jones,  1  Denio,  517 ;  Shumway 
V.  Collins,  6  Gray,  230 ;  2  Piatt,  Leases,  328  ;  Taylor,  L.  &  T.  §§  238,  492.  Post, 
»324. 

7  Berais  v.  Wilder,  100  Mass.  446. 

8  Way  V.  Reed,  6  Allen,  304. 


CH.  X.   §  S.]  ESTATES    FOR   YEARS.  475 

he  becomes  owner.^  The  insertion  of  a  condition  in  a  lease, 
moreover,  is  the  only  by-way  of  defeating  the  same  for  a 
breach  of  covenant  therein,  unless  such  breach  can  be  construed 
into  a  determination  of  a  conditional  limitation,  by  which  the 
lease  is  to  continue  while  or  so  long  as  the  lessee  keeps  his 
covenant,  and  the  like.^  Where  one  made  a  lease  for  three 
years,  and  two  more  if  he  did  not  sell  the  estate,  in  which  case 
the  lease  for  two  years  was  to  be  void,  it  would  make  no  dif- 
ference as  to  the  effect  of  such  sale  whether  made  before  the 
two  years  begin,  or,  during  that  time,  it  avoided  the  provision 
as  to  a  continuance  for  two  years.^ 

4.  As  the  law  stood  before  the  32  Hen.  VIII.,  no 
one  could  *  avail  himself  of  the  benefit  of  a  condition  [*318] 
to  defeat  an  estate  by  entry,  except  the  lessor  or  his 
heirs,  because  such  right  was  not  assignable  at  common  law, 
more  than  any  other  chose  in  action.  The  consequence  was, 
if  a  lessor  conveyed  his  reversion,  although  the  estate  would 
pass,  and  the  assignee  of  the  reversion  might  recover  rent  from 
the  tenant  in  an  action  of  debt,  no  covenant,  as  such,  passed 
to  the  grantee  or  assignee  of  such  reversion.  And  though,  for 
breach  of  such  covenant,  the  assignee  might  have  sued  in  the 
name  of  the  covenantee,  the  lessor,  yet,  as  the  lessor  had  parted 
with  all  his  estate,  he  could  not  enter  and  defeat  the  estate 
of  the  lessee  for  a  breach  of  the  condition.  The  effect  of  this 
was,  that  when  the  Crown,  in  the  time  of  Henry  VIII.,  under- 
took to  convey  the  lands  of  the  dissolved  monasteries,  the  gran- 
tees found  themselves  unable  to  enforce  the  covenants  and 
conditions  under  which  the  tenants  held  these  lands.  And  to 
provide  a  remedy  for  the  Crown,  and  partly  for  the  people  at 
large,  a  statute  was  passed,*  by  which,  omitting  the  provisions 
as  to  the  Crown  lands,  grantees  or  assignees  to  or  by  any  per- 

i  Trask  v.  Wheeler,  7  AFen,  110. 

2  Taylor,  L.  &  T.  §  291  ;  7  Am.  Law  Rev.  256 ;  Eliot  v.  Stone,  1  Gray,  571 ; 
Com.  L.  &  T.  104 ;  Ashley  v.  Warner,  11  Gray,  45. 

3  Know.les  v.  Hull,  97  Mass.  206. 

*  Stat.  32  Henry  VIII.  c.  34.  It  is  stated  by  a  writer  in  the  161  No.  of 
Westminster  Keview,  p.  59,  upon  the  autliority  of  St.  John  on  the  Land  Keve- 
nues  of  the  Crown,  p.  68,  that,  at  the  suppression  of  the  monasteries  and  other 
charitable  foundations,  one-fifth  part  of  the  soil  of  the  whole  realm,  estimated 
at  thirty  millions  of  pounds,  fell  at  once  to  the  disposal  of  the  Crown,  and  that 
this  was  all  distributed  among  the  creatures  of  Henry. 


476  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

son  and  their  heirs,  executors,  administrators,  and  assigns, 
should  "  have  like  advantages  against  the  lessees,  their  execu- 
tors, administrators,  and  assigns,  by  entry  for  non-paj'ment  of 
the  rent,  or  for  doing  of  waste  or  other  forfeiture,  and  by  action 
only  for  not  performing  other  conditions,  covenants,  or  agree- 
ments expressed  in  the  indentures  of  leases,  &c.,  against  the 
said  lessees,  &c.,  their  executors,  administrators,  and  assigns, 
as  the  said  lessors  and  grantors,  their  heirs  or  successors, 
might  have  had."  And  a  corresponding  authority  is  given  to 
lessees  and  their  assigns  to  enforce  covenants  in  their  favor.*  ^ 
And  an  assignee  of  an  undivided  share  may  maintain  an  action 
for  a  breach  in  respect  of  that  share.^  But  a  condition,  if  en- 
tire, is  not  apportionable  by  the  act  of  the  parties,  and  will  be 
wholly  destroyed  by  a  severance  of  any  part  of  the  reversion 
by  their  act.^  It  has  accordingly  been  held,  that  if  a  lease  is 
made  reserving  rent,  and  with  condition  of  re-entry  for  non- 
payment, and  the  lessor  demise  the  reversion  for  a  term  of 
years,  it  would  carry  with  it  the  benefit  of  the  condition 
under  the  statute  of  32  Hen.  VIII.  But  if  he  lease  three  acres, 
and  then  grant  the  reversion  in  two  of  these,  it  does  not  pass  the 
benefit  of  the  condition,  because  the  condition  is  entire  and 
indivisible,  although  the  rent  in  such  case  will  be  apportioned. 
The  effect  is,  that  one  of  several  heirs  of  a  reversioner  may 
avail  himself  of  the  benefit  of  the  condition  contained  in 
the  lease,  and  recover  in  ejectment  his  share  for  the  breach 
of  the  same.*  Yet  the  assignee  of  the  reversion  of  a  part  of  the 
land,  though  he  cannot  enter  for  a  condition  broken,  may 
maintain  an  action  of  covenant  by  virtue  of  the  statute.^  This 


*  Note.  —  For  the  purposes  of  convenient  reference,  the  reader  will  find  ex- 
tracts from  this  and  some  other  early  English  statutes  inserted  at  the  close  of  the 
present  book. 

1  Wms.  Real  Prop.  202,  and  n. ;  Co.  Lit.  215  a  ;  1  Burton,  Real  Prop.  §  855; 
Hare's  note  to  Dumpor's  case,  1  Smith,  Lead.  Cas.  5th  Am.  ed.  92  ;  Smith,  Land. 
&  Ten.  283-285 ;  Fenn  v.  Smart,  12  East,  444 ;  Van  Rensselaer  v.  Hays,  19 
N.  Y.  81. 

2  1  Piatt,  Leases,  734.  3  2  Piatt,  Leases,  382. 

*  Cruger  v.  McLaury,  41  N.  Y.  225;  Co.  Lit.  215  a;  Wright  v.  Burroughs, 
3  M.  G.  &  S.  700. 

6  Taylor,  L.  &  T.  §  296. 


CH.  X.  §  3.]  ESTATES    FOR   YEARS.  477 

statute  applies  only  to  leases  where  there  is  a  reversion  in  the 
lessor,  and  does  not  extend  to  covenants  in  deeds  in  fee.^ 

5.  But  a  covenant  or  condition  already  broken  can- 
not be  *  assigned  so  as  to  be  taken  advantage  of  or  [*319] 
enforced  by  an  assignee  in  his  own  name.^ 

6.  As  the  law  now  stands,  therefore,  not  only  the  payment 
of  rent,  but  the  performance  of  any  other  covenant  running 
with  the  estate,  may  be  provided  for  by  a  condition  for  re-entry 
and  forfeiture,  by  which  the  lessor  or  his  heirs  or  assigns  may 
enter  and  repossess  the  premises  as  if  no  lease  had  been  made. 
Thus  a  covenant  by  lessee  not  to  carry  off  any  hay,  under  a 
penalty  of  £5,  with  a  general  clause  of  right  of  re-entry  for 
breach  of  any  of  the  covenants,  worked  a  forfeiture  of  the 
estate,  the  lessee  having  broken  that  covenant.^  So  a  con- 
dition in  a  lease,  that,  if  the  lessee  should  fail  to  perform  any 
of  the  covenants  in  the  same,  the  lessor  might  enter  and  re- 
I^ossess  the  premises,  and  one  of  the  covenants  was,  that  the 
lessee  should  not  occupy  or  suffer  the  premises  to  be  occupied 
in  a  particular  manner,  which  was  broken,  it  was  held,  the 
devisees  of  the  lessor  might  enter  and  defeat  the  estate  for 
such  occupation.^  But  in  order  to  have  the  non-payment  of 
rent  a  ground  of  forfeiture  of  the  estate  on  the  part  of  the 
lessee,  the  lease  must  contain  a  condition  for  re-entry  and  for- 
feiture for  that  cause.^  And  it  is  hardly  necessary  to  add,  that, 
in  construing  and  applying  such  causes  of  forfeiture,  courts 
apply  the  rules  of  law  strictly.*^  And  where  the  lessor  entered 
upon  and  took  possession  of  the  premises,  and  while  he  so  held 
them  the  lessee's  covenant  as  to  keeping  the  premises  in  repair 
was  broken,  it  was  held  that  the  lessor  could  not  take  advan- 
tage of  the  condition  in  the  lease  in  respect  to  such  repairs, 
on  account  of  any  breach  ai'ising  while  in  his  possession.'^     So, 

1  Wallace  v.  Vernon,  1  Kerr,  N.  B.  22,  25  ;  Lewes  v.  Eidge,  Cro.  Eliz.  863. 

2  Burton,  Real  Prop.  §  857 ;  Burden  v.  Thayer,  3  Met.  76 ;  Crane  v.  Batten, 
28  E.  L.  &  E.  187,  wliere  the  covenant  was  to  insure,  Trask  v.  Wheeler,  7  Allen, 
111. 

3  Doe  V.  Jepson,  3  B.  &  Ad.  402. 

4  Wheeler  v.  Earle,  5  Cush.  31.  5  Brown  v.  Bragg,  22  Ind.  123. 
6  Doe  V.  Bond,  5  B.  &  C.  855  ;  Doe  v.  Stevens,  3  B.  &  Ad.  299 ;  Doe  v.  Jep- 
son, 3  B.  &  Ad.  402. 

"!  Pillott  V.  Boosey,  11  C.  B.  n.  8.  88.5  ;  1  Roll.  Abr.  453. 


478  LAW   OF   REAL   PROPERTY.  [BOOK    L 

where,  by  the  terms  of  his  lease,  the  tenant  was  to  remove 
certain  buildings  in  a  manner  therein  prescribed,  it  was  held 
that  he  might  do  this  at  any  time  during  his  term.^ 

7.  The  effect  of  such  an  entry  by  a  lessor  or  his  assigns, 
where  he  may  lawfully  make  it  for  breach  of  some  condition," 
as  the  performance  of  a  covenant  in  a  lease,  is,  as  already 
stated,  to  determine  the  estate  of  the  tenant  altogether,  and 
wholly'  revest  the  same  in  the  lessor  or  his  assigns.^  But  this 
does  not  impair  the  lessor's  right  to  recover  rent  up  to  the  time 
of  the  forfeiture  incurred.^  And  where  the  lessor  was  bj'the 
terms  of  his  lease  to  pay  for  improvements  at  the  end  of  the 
terra,  but  entered  and  put  an  end  to  the  lease  for  acts  of  for- 
feiture done  by  the  lessee,  it  was  held  that  the  lessee  had  no 
claim  to  recover  for  such  improvements  until  the  natural  ex- 
piration of  the  original  term>  But  until  such  re-entry  is 
actually  made,  the  estate  remains  in  the  lessee  or  his  assigns, 
in  the  same  manner  as  before,  since  the  breach  of  the  con- 
dition does  not,  of  itself,  operate  like  a  conditional  limitation 
to  determine  the  estate.^  And  the  courts,  moreover,  are  strict 
in  construing  the  terms  of  the  condition  so  as  to  save  a  for- 
fei.ture,  if  it  can  fairly  be  done.^    Among  the  cases  illustrative 

of  the  strictness  which  courts  apply  in  questions  of  this 
[*320]  kind  are  the  following:  In  Doe  v.  Stevens,  the  *  clause 

giving  the  right  of  re-entry  was,  "  if  the  lessee  shall 
do  or  cause  to  be  done  any  act,  matter,  or  thing,  contrary  to, 
and  in  breach  of,  any  of  the  covenants."  The  lease  contained 
a  covenant  to  repair.  It  was  held,  that  the  condition  only  re- 
lated to  some  act  done,  and  not  to  an  omission  to  make  the 
repairs.'^  In  Crane  v.  Butler,  there  was  a  covenant  by  lessee 
to  insure,  with  a  condition  of  re-entry  for  the  breach.  The 
insurance  was  to  be  made  in  the  joint  names  of  lessor,  his 
heirs  or  assigns,  and  lessee,  in  such  office  as  lessor  or  his  assigns 

1  Palethorp  v.  Bergner,  52  Penn.  St.  149.  > 

2  Mackubin  v.  Whetcroft,  4  Harr.  &  McH.  135. 

3  Mattice  v.  Lord,  30  Barb.  38.  *  Lawrence  v.  Knight,  11  Cal.  298. 
6  Fifty  Associates  v.  Howlanfl,  11  Met.  99;  Western  Bank  v.  Kyle,  6  Gill,  343  ; 

Proctor  y.  Keith,  12  B.  Mon.  252 ;  Doe  i'.  Birch,  1  M.  &  W.  402 ;  Garner  v.  Han- 
nah, 6  Duer,  262;  Elliott  v.  Stone,  1  Gray,  571. 

6  Spear  v.  Fuller,  8  N.  H.  174 ;  Doe  v.  Stevens,  3  B.  &  Ad.  299. 

7  Doe  V.  Stevens,  3  B.  &  Ad.  299. 


CH.  X.  §  3.]  ESTATES    FOR   YEARS.  479 

should  direct.  The  lessor  notified  the  lessee  in  what  office  to 
insure,  but  soon  after  assigned  his  estate  to  plaintiff,  who 
waited  three  days,  and,  lessee  not  having  insured,  entered  for 
the  breach.  But  it  was  held  no  breach  which  gave  the  plain- 
tiff a  right  to  enter,  first,  not  for  what  took  place  before  the 
assignment  by  the  lessor  ;  secondl}^  nor  for  neglect  after  that, 
inasmuch  as  it  was  requisite  he  should  notify  the  lessee  of  the 
assignment,  and  indicate  in  what  office  the  insurance  should 
be  procured. 1  In  Spear  v.  Fuller,  the  lessee  covenanted,  among 
other  things,  not  to  assign  or  underlet,  and  a  condition  was 
inserted  that  the  lessor  might  enter  and  expel  the  lessee  if  he 
failed  to  pay  rent  or  committed  waste.  An  assignment  by 
lessee  was  held  to  be  a  mere  breach  of  his  covenant,  but  not 
of  the  condition.^ 

8.  So,  though  one  covenant  in  a  lease  is,  to  surrender  the 
premises  upon  a  certain  contingency,  it  does  not  give  the  lessor 
a  right  to  enter  and  expel  the  lessee  upon  the  happening  of 
such  contingency,  unless  there  is  a  right  of  re-entry  therefor 
reserved  to  the  lessor  in  the  lease.^  And  this  applies  to  all 
covenants  in  leases :  the  lessor  gains  no  right  to  re-enter  and 
expel  the  lessee  for  a  breach  thereof,  unless  there  is  some  pro- 
viso or  condition  contained  in  the  lease  giving  such  right  of 
re-entry.^  So,  where  the  lessee  agreed  to  surrender  the  prem- 
ises at  any  time  after  so  many  months,  on  being  paid  so  much 
money,  it  was  held  to  be  a  covenant  only  and  not  a  condition, 
nor  a  conditional  limitation  which  would  determine  the  lease. 
And  it  may  be  stated  as  a  general  proposition,  that  courts 
always  construe  similar  clauses  as  covenants  only,  rather  than 
conditions  or  conditional  limitations.^  Where,  by  the 
*  lease,  it  was  to  be  void  if  the  lessee  assigned,  it  was  [*321] 
held  to  be  no  breach  to  take  in  one  or  more  co-tenants, 
or  to  underlet  the  premises.^     Nor  is  it  a  breach  of  a  condition 

1  Crane  v.  Batten,  28  E.  L.  &  E.  137.    ■ 

2  Spear  v.  Fuller,  8  N.  H.  174  ;  Burnes  v.  McCubbin,  3  Kans.  226. 
8  Dennison  v.  Reed,  3  Uana,  586. 

*  Delancy  v.  Ganong,  5  Seld.  9 ;  Den  i'.  Post,  1  Dutch.  292  ;  Brown  v.  Bragg, 
22  Ind.  123.- 

5  Wheeler  v.  Dascombe,  3  Cush.  285 ;  Doe  v.  Phillips,  2  Bing.  13. 

<>  Hargrave  v.  King,  5  Ired.  Eq.  430;  Spear  v.  Fuller,  8  N.  H.  174 ;  Crusoe  v. 
Bugby,  2  Wm.  Bl.  766.    But  a  condition  not  to  "  set,  let,  or  assign  over  the  whole 


480  LAW   OF   REAL   PROPERTY,  [BOOK   L 

in  a  lease  not  to  alien,  sell,  assign,  transfer,  and  set  over,  or 
otherwise  part  with,  the  lease  or  premises  without  license,  to 
deposit  the  lease  by  way  of  security  for  money  loaned. ^  Nor 
is  it  a  breach  of  such  condition  to  take  in  a  lodger,  although 
it  be  giving  him  exclusive  possession  of  a  chamber  for  a  j^ear, 
provided  the  lessee  retain  possession  and  control  of  the  leased 
premises  as  a  whole. ^ 

9.  In  order  to  avail  himself  of  his  right  to  enter  and  defeat 
the  estate  of  the  lessee  for  a  breach  of  condition,  there  are  cer- 
tain things  required  by  the  common  law  to  be  done  by  the  re- 
versioner, in  respect  to  which  the  law  is  quite  strict,  unless 
the  parties  shall,  by  agreement,  have  substituted  something 
in  its  stead.  These  are  enumerated  in  a  note  to  Saunders's 
Reports,  and  are  as  follows.  If  the  condition  be  for  the  pay- 
ment of  rent,  there  must  be,  1.  A  demand  of  the  rent  precisely 
upon  the  day  when  the  rent  is  due  and  payable  by  the  lease, 
to  save  the  forfeiture.^  But  where  the  covenant  with  condi- 
tion, and  a  right  of  re-entry  for  a  breach,  was  to  pay  the  taxes 
assessed  upon  the  premises,  it  was  held,  that  the  lessor  need 
not  make  demand  of  the  taxes  in  order  to  give  him  a  right  to 
enter  for  the  non-payment.*  But  in  a  case  in  Indiana,  where 
by  the  terras  of  the  lease  the  lessee  was  to  pay  the  taxes,  it  was 
held,  that  the  lessor,  before  entering  to  enforce  a  forfeiture  for 
neglect  on  the  part  of  the  lessee  to  pay  them,  ought  to  demand 
pa3^ment  of  him.^  2.  It  must  be  made  a  convenient  time  be- 
fore sunset.  3.  It  must  be  made  upon  the  land,  at  the  most 
notorious  place  upon  it,  which  would  be  the  front  door  of  the 
dwelling-house  if  there  was  one  upon  the  land,  unless  some 
other  place  is  agreed  upon  by  the  parties.  Nor  does  it  obviate 
the  necessity  of  an  actual  demand  that  there  is  no  one  present 
upon  whom  to  make  it.     And  a  demand  made  after  or  before 

or  any  part  of  the  premises,  on  pain  of  forfeiture,  &c.,  would,  by  underlet- 
ting, work  a  forfeiture."  Roe  v.  Harrison,  2  T.  R.  425;  Smith,  Land.  &  Ten 
116,  n. 

1  Doe  V.  Hogg,  1  C.  &  P.  160 ;  Doe  v.  Lansing,  R.  &  M.  36  ;  Tayl.  L.  &  T. 
§  406. 

^  Tayl.  L.  &  T.  §  405 ;  Com.  L.  &  T.  236 ;  Brewer  v.  MeGowen,  L.  R.  5  C.  P. 
243 ;  Cook  v.  Humber,  11  C.  B.  n.  s.  46  ;  Greenslade  v.  Tapscott,  1  Cr.  M.  &  R.  59. 

3  Duppa  V.  Mayo,  1  Saund.  287,  n.  16;  Doe  v.  Wandlass,  7  T.  R.  117. 

*  Byrane  v.  Rogers,  8  Minn.  285.  ^  Meni  v.  Ratlibone,  21  Ind.  462. 


CH.  X.  §  3.]  ESTATES    FOR   TEARS.  481 

the  proper  time,  or  at  an  improper  place,  will  not  authorize 
an  entry  to  defeat  the  estate.^  The  rule  above  stated  has 
been  substantially  reaffirmed  by  the  modern  English  cases 
as  well  as  by  numerous  American  cases.  In  one,  the  time 
at  which  the  rent  must  be  demanded  is  fixed  at  sunset.^  In 
another,  a  demand  at  ten  o'clock  in  the  forenoon  of  the  last 
day  was  held  to  be  too  early .^  In  another,  proof  of  its  hav- 
ing been  in  the  afternoon  was  held  not  to  be  sufficiently  pre- 
cise.* But  the  statement  of  the  time  as  above  given  by  Coke 
seems  to  be  the  rule  now  recognized  by  the  courts. 

10.  The  demand,  moreover,  must  be  of  the  precise  amount 
due  on  the  day  it  becomes  due.^  And  yet,  though  it  must  be 
demanded  before  sundown  long  enough  to  have  light  by  which 
to  count  the  money  in  order  to  enforce  a  forfeiture,  the  rent 
is  not  in  fact  due  till  the  last  minute  of  the  natural  day,  for 
if  the  lessor  dies  after  sunset,  and  before  midnight,  the  rent 
goes  to  the  heir  with  the  reversion,  and  not  to  the  execu- 
tor.6 

*  11.  Sometimes  the  parties  agree  that  upon  the  non-  [*322] 
payment  of  the  rent  the  lessor  may  enter  for  breach  of 
the  condition  without  previous  demand,  and  in  such  case  a 
previous  demand  is  unnecessary.'^ 

1  Jackson  v.  Kipp,  3  Wend.  230 ;  M'Murphy  v.  Minot,  4  N.  H.  251 ;  Jones  v. 
Reed,  15  N.  H.  68 ;  Mackubin  v.  Whetcroft,  4  Harr.  &  McH.  135 ;  Jackson  v. 
Harrison,  17  Johns.  66  ;  Remsen  v.  Conklin,  18  Johns.  447  ;  Bradstreet  v.  Clark, 
21  Pick.  389  ;  Co.  Lit.  202  a  ;  Maund's  case,  7  Rep.  28  ;  Byrane  v.  Rogers,  8 
Minn.  282 ;  Tate  v.  Crowson,  6  Ired.  L.  66  ;  McGlynn  v.  Moore,  25  Cal.  397  ;  Chap- 
man V.  Harney,  100  Mass.  354  ;  Chapman  v.  Kirby,  49  111.  211 ;  Chadwick  v. 
Parker,  44  111.  330.  But  by  statute  in  Illinois,  the  tenant  has  ten  days  after  de- 
mand made  in  which  to  pay  the  rent  and  save  a  forfeiture.    lb. 

2  Per  Ld.  Hale,  Duppa  v.  Mayo,  1  Saund.  287. 
8  Acocks  V.  Phillips,  5  H.  &  Nor.  183. 

4  Jackson  v.  Harrison,  17  Johns.  66.  See  also  Chapman  v.  "Wright,  20  111.  120  ; 
McQuesten  v.  Morgan,  34  N.  H.  400 ;  Academy  of  Music  v.  Hackett,  2  Hilton, 
217,  229,  232  ;  Jewett  v.  Berry,  20  N.  H.  36  ;  Kimball  v.  Rowland,  6  Gray,  224 ; 
Phillips  V.  Doe,  3  Ind.  132 ;  Gaskill  v.  Trainer,  3  Cal.  334 ;  and  American  cases 
in  note,  5  H.  &  Nor.  184. 

5  Doe  I'.  Paul,  3  Car.  &  P.  613  ;  M'Cormick  v.  Connell,  6  S.  &  R.  151  ;  Sperry 
V.  Sperry,  8  N.  H.  477  ;  Conner  v.  Bradley,  1  How.  211 ;  Academy  of  Music  v. 
Hackett,  2  Hilton,  232. 

G  Co.  Lit.  202  a,  n.  87 ;  Duppa  v.  Mayo,  1  Saund.  287 ;  Rockingham  v.  Ox- 
enden,  2  Salk.  578 ;  Academy  of  Music  v.  Hackett,  sup. 

1  Doe  V.  Masters,  2  B.  &  C.  490 ;  Fifty  Associates  v.  Howland,  6  Gush.  214 ; 
2  Piatt,  Leases,  338 ;  Byrane  v.  Rogers,  8  Minn.  281. 
VOL.  I.  31 


482  LAW  OF  REAL  PROPERTY.  [BOOK  L 

12.  But  independently  of  the  effect  arising  from  tlie  confes- 
sion of  entry,  in  an  action  of  ejectment,  it  seems  to  be  neces- 
sary that  an  actual  entry  should  always  be  made  by  the  owner 
of  the  reversion  for  condition  broken  in  order  to  complete  the 
forfeiture  and  defeat  the  lease. ^  But  it  does  not  appear  that 
it  is  requisite  that  this  entry  should  be  made  at  any  particular 
time  after  the  right  to  make  it  accrues,  provided  the  lessor  do 
no  act,  such  as  accepting  rent  for  the  premises  accruing  after 
the  breach  of  the  condition,  which  would  amount  to  a  waiver 
of  the  forfeiture.^  Such  acceptance  of  rent  would  have  that 
effect,  but  it  must  be  rent  which  became  due  after  the  breach 
of  the  condition.^  And  the  same  would  be  the  effect  of 
bringing  an  action  for  rent  accruing  after  the  breach  of  cove- 
nant, if  this  were  known  to  the  lessor  at  the  time  of  com- 
mencing the  action.*  But  in  England,  and,  it  would  seem,  in 
those  States  where  the  technical  action  of  ejectment  is  in  use 
for  the  recovery  of  lands,  a  lessor  may  recover  his  term  for  a 
breach  of  a  condition  which  works  a  forfeiture,  without  any 
formal  entry  made,  as  the  form  of  the  process  assumes  such 
entry  to  have  been  made.^ 

13.  A  forfeiture  may  be  saved,  even  after  such  a  demand 
has  been  made  by  lessor  as  before  mentioned,  by  the  lessee's 
tendering  the  rent  due  at  any  time  long  enough  before  twelve 
o'clock  at  night  to  count  the  money,  although  as  a  general 
rule  a  tender  to  be  effectual  must  be  made  before  sundown. 
And  if  there  is  no  place  fixed  for  making  the  payment,  the 

tenant  may  save  a  forfeiture  by  going  upon  the  prem- 
[*323]  ises  at  a  proper  *  time,  and  actually  tendering  it  there. 

1  Duppa  ?;.Mayo,  1  Saund.  287  c,  note;  1  Smith,  Lead.  Cas.  5th  Am.  ed. 
89 ;  Jones  v.  Carter,  15  M.  &  W.  718.  Unless  by  its  terms  the  lease  is  to  be- 
come void,  and  then  it  is  at  lessor's  option  to  determine.     See  pi.  14. 

2  Doe  V.  Allen,  3  Taunt.  78 ;   Doe  v.  Bancks,  4  B.  &  Aid.  401. 

3  Smith,  Land.  &  Ten.  114 ;  Hartshorne  v.  Watson,  4  Bing.  N.  C.  178 ;  2 
Piatt,  Leases,  468  ;  Id.  470  ;  Co.  Lit.  211  b  ;  Bleecker  v.  Smith,  13  Wend.  530 ; 
Hunter  v.  Osterhoudt,  11  Barb.  33;  Richburg  v  Bartley,  Busbee  (N.  C),  418; 
Coon  V.  Brickett,  2  N.  H.  163.  Contra,  and  its  law  doubted,  1  Smith,  Lead.  Cas. 
5th  Am.  ed.,  96. 

*  Dendy  v.  Nichol,  4  C.  B.  n.  s.  376. 

5  2  Piatt,  Leases,  331 ;  Doe  v.  Masters,  2  B.  &  C.  490;  Goodright  v.  Cator, 
Doug.  485;  Little  v.  Heaton,  2  Ld.  Raym.  751 ;  1  Smith,  Lead.  Cas.  5th  Am.  ed. 
70;  Jones  v.  Carter,  15  M  &  W.  718;  Jackson  v.  Crysler,  1  Johns.  Cas.  125. 


CH.  X.  §  3.]  ESTATES    FOR   TEARS.  483 

But  merely  having  the  money  there  without  offering  it  would 
not  be  sufficient.^ 

14.  There  are  other  cases  where  the  acceptance  of  rent 
may  be  a  waiver  of  a  forfeiture,  where  the  breach  of  the  con- 
dition has  consisted  in  other  things  than  the  non-payment  of 
rent ;  and,  in  still  other  cases,  such  acceptance  of  rent  will  not 
be  construed  into  a  waiver ;  while  it  is  universally  true,  that 
no  such  act  as  acceptance  of  rent  will  be  construed  into  a 
waiver  of  a  forfeiture,  unless  the  fact  of  the  breach  of  the 
condition  was  known  to  the  lessor  at  the  time.  Thus, 
where  the  condition  was  that  lessee  should  not  underlet, 
and  he  did,  and  lessor  received  rent  of  the  under-tenant,  it 
was  held  to  be  a  waiver  of  that  breach,  but  did  not  pre- 
vent the  lessor  from  treating  a  subsequent  underletting  as 
a  ground  of  forfeiture.^  So  where  the  condition  was  for  non- 
repair, and  lessor  had  given  notice  to  repair,  and  then  the 
tenant  paid  rent,  it  was  held  to  be  a  waiver  of  forfeiture  for 
that  instance,  but  not  for  want  of  repair  after  such  payment.^ 
So  where  the  breach  consisted  in  cutting  timber,  and  the  les- 
sor accepted  rent  for  a  period  of  time  subsequent  to  such  cut- 
ting, if  this  was  known  to  the  lessor,  he  thereby  waived  the 
forfeiture.*  So  where  the  condition  was  to  plant  a  certain 
number  of  apple-trees,  which  the  lessee  failed  to  do,  it  was 
held  that  the  payment  of  rent  was  a  waiver  of  forfeiture  up 
to  the  time  of  its  being  received,  but  a  failure  to  plant  them 
afterwards  would  be  ground  for  a  forfeiture.^  And  a  like 
doctrine  was  held  where  the  breach  consisted  in  not  building 
a  house  upon  the  premises  by  a  prescribed  time,  and  there 
was  an  acceptance  of  rent  after  such  breach.^  So  where  the 
condition  was  not  to  obstruct  a  way,  and  tenant  obstructed  it 
prior  to  December,  1819,  when  the  rent  fell  due,  and  con- 
tinued to  do  so  till  April,  1820.  In  September,  1820,  lessor 
received  the  rent  up  to  December,  1819,  and  it  was  held  not 
to  be  a  waiver  as  to  the  time  from  December  to  April.'^     But 

1  Sweet  V.  Harding,  19  Vt.  587  ;  Haldane  v.  Johnson,  20  E.  L.  &  E.  498. 

2  Doe  V.  Bliss,  4  Taunt.  735 ;  O'Keefe  v.  Kennedy,  3  Cusli.  325 ;  Murray  v. 
Harway,  56  N.  Y.  343. 

3  Fryett  v.  Jeffreys,  1  Esp.  393.  <  Gombee  v.  Hackett,  6  Wis.  323, 
5  Bleecker  v.  Smith,  13  Wend.  530.  6  McGlynn  v.  Moore,  25  Cal.  394. 
t  Jackson  v.  Allen,  3  Cow.  220.    See  also  Clarke  v.  Cummings,  6  Barb.  339; 


48-1  LAW  OF  REAL  PROPERTY.  [BOOK  L 

in  those  cases  where  the  condition  is,  that  for  non-payment  of 
rent,  and  the  like,  the  lease  shall  be  null  and  void,  and 
[*324]  the  lessor  demands  *  the  rent,  and  lessee  neglects  to  pay, 
or  lessee  is  guilty  of  any  other  breach  of  the  condition, 
giving  the  right  of  re-entry  accordingly,  the  lease  is  absolutely 
determined,  and  cannot  be  set  up  by  subsequent  acceptance  of 
rent.^  But  this  is  at  the  election  of  the  lessor,  as  the  lessee 
can  never  set  up  his  own  right  as  avoiding  a  lease.^  If  the 
lease  provides  that  it  may  be  lawful  for  the  lessor  to  re-enter 
upon  the  non-payment  of  rent,  and,  instead  of  doing  this,  he 
distrains  for  it  after  having  demanded  it,  he  thereby  affirms 
the  lease,  and  admits  its  continuance.^  But  the  mere  stand- 
ing by,  while  the  tenant  does  acts  which  violate  the  terms  of 
the  lease  and  work  a  forfeiture,  would  be  no  waiver  of  the 
condition  or  the  right  to  enforce  it.^ 

15.  In  one  case,  the  condition  of  the  lease  was,  that  lessee 
should  give  a  bond  at  the  end  of  ep-ch  year,  with  surety,  for 
the  rent  of  the  succeeding  year ;  it  was  held,  in  order  to  avail 
himself  of  this  condition  as  a  forfeiture,  the  lessor  must  first 
demand  the  bond  at  the  end  of  the  year.^ 

16.  And  it  is  now  settled,  that  in  order  to  save  a  forfeiture 
for  non-payment  of  rent,  if  the  lessor  brings  his  action  of 
ejectment,  and  the  lessee  will  bring  the  money  due  into  court 
for  the  lessor,  the  courts  of  law  as  well  as  equity  will  stay  the 
proceedings,  provided  the  failure  to  pay  was  by  accident,  and 
not  wilfully  done.^     But  whether  courts  of  equity  will  relieve 

Jackson  v.  Brownson,  7  Johns.  227,  acceptance  of  rent  after  acts  of  forfeiture 
done,  will  be  a  waiver,  provided  and  only  in  case  lessor  knew  of  the  acts  having 
been  done  when  he  received  the  rent.  Pennant's  case,  3  Rep.  64;  Camp  v.  Pul- 
ver,  6  Barb.  91,  acceptance  of  rent,  after  cutting  of  trees,  a  waiver  of  a  forfeit- 
ure, grounded  on  such  cutting.  Duppa  v.  Mayo,  1  Saund.  287  c,  n. ;  Doe  v, 
Bancks,  4  B.  &  Aid.  401.  See  the  American  cases  collected  in  note  to  4  C.  B. 
N.  8.  Am.  ed.  387  ;  Barroilhet  v.  Battelle,  7  Cal.  454. 

1  Duppa  V.  Mayo,  1  Saund.  287  c,  n. ;  Pennant's  case,  3  Rep.  64. 

2  Cartwright  v.  Gardner,  5  Cush.  281  ;  Bemis  v.  Wilder,  100  Mass.  447 ; 
ante,  p.  *317. 

3  Duppa  V.  Mayo,  1  Saund.  287  c,  n. ;  Pennant's  case,  8  Rep.  64 ;  Jackson  v. 
Sheldon,  5  Cow.  448  ;  McKildoe  v.  Darracott,  13  Gratt.  278.  In  Illinois,  a  dis- 
tress warrant  for  rent  cannot  issue  after  six  months  from  the  time  the  rent  falls 
due.     Werner  v.  Ropiequet,  44  111.  522. 

4  Perry  v.  Davis,  3  C.  B.  n.  s.  769,  773. 

5  Den  V.  Crowson,  6  Ired.  65. 

6  Atkins  V.  Chilson,  11  Met.  112;  Garner  v.  Hannah,  6  Duer,  262. 


CH.  X.  §  3.]  ESTATES   FOR   YEARS.  485 

from  forfeiture  where  the  liability  for  a  breach  of  condition 
may  be  compensated  in  damages,  "  may  be  regarded  as  yet  un- 
settled in  the  jurisprudence  of  this  country."  But  this  remark 
is  to  be  taken  in  connection  with  other  breaches  than  the  non- 
payment of  rent.  In  respect  to  that,  the  English  and  Amer- 
ican law,  as  well  as  courts  of  law  and  equity,  substantially 
agree  in  giving  relief  if  the  arrears  of  rent,  interest,  and  cost 
are  paid  or  tendered.^  The  extent  to  which  courts  aid  parties 
who  are  not  in  fault  in  saving  their  estates  from  forfeiture  by 
reason  of  non-performance  of  conditions  in  leases  is  illustrated 
in  the  case  where  the  term  was  for  one  thousand  years,  the 
rent  being  payable  in  Russia  Sables  Iron,  for  which  the  lessor 
had  for  forty  years  accepted  money  without  objection  by  way 
of  commutation.  At  the  end  of  that  time,  the  iron  was  de- 
manded and  insisted  on  ;  but  none  was  to  be  had  in  the  market, 
as  it  had  ceased  to  be  imported.  The  court,  upon  application 
made,  gave  the  lessee  time  in  which  to  send  to  Russia  for  the 
requisite  iron  before  enforcing  the  forfeiture.^ 

1  Sheets  v.  Selden,  7  WaU.  416  ;  Story,  Eq.  §  1315, 1316.    See  also  Chadwick 
V.  Parker,  44  111.  330. 

2  Lilly  V.  Fifty  Associates,  101  Mass.  435. 


486  LAW  OF  REAL  PROPERTY.  [bOOK  I. 


SECTION  IV. 

OF   COVENANTS   IN   LEASES. 

1.  Of  the  kinds  of  covenants. 

2.  Implied  covenant  by  lessor,  what  is. 
2  a.  Same  subject. 

3.  Implied  covenant  by  lessee. 

4.  Distinction  in  the  effect  of  implied  and  express  coA^enant. 

4  a.     The  assignee  liable  who  holds  when  the  rent  falls  due. 
6.     Of  covenants  running  with  the  land. 

5  a.     Same  subject. 

6.  Covenants  run  with  part  of  the  land. 

7.  Sub-lease  as  distinguished  from  assignment. 

8.  Covenant  by  assignee  at  common  law. 

9.  Relation  of  landlord  and  tenant  extends  to  assignees. 

10.  What  covenants  run  with  the  land. 

11.  When  necessary  to  name  assignees  to  bind  them. 

12.  Covenants  attaching  to  parts  of  premises. 

13.  Liability  of  assignee  depends  on  privity  of  estate. 

14.  Lessees  liable  by  privity  of  estate  and  contract. 

15.  Act  of  forfeiture  by  one  of  several  assignees. 

16.  Liability  to  repair,  pay  rent,  &c.,  if  premises  are  injured. 

As  it  is  difficult  to  conceive  of  a  lease  which  does  not  con- 
tain some  covenant,  express  or  imj^lied,  upon  the  part  of  lessor 
or  lessee,  or  both,  covenants  in  leases  for  years  become  an  im- 
portant branch  of  the  subject  of  such  estates.  A  question 
has  been  raised  by  conflicting  decisions  of  different  courts, 
whether  one  can  be  sued  in  covenant  who  is  named  in  a  sealed 
instrument,  deed  poll,  or  indenture,  as  a  party  to  it,  which  is 
accepted  b}'  him,  if,  by  the  terms  of  it,  he  is  to  do  certain 
things  which  he  fails  to  perform,  but  the  same  has  not  been 
executed  on  his  part ;  while  in  New  York  it  is  now  held,  as  it 
is  in  New  Jersey,  that  an  action  of  covenant  broken  would 
lie  in  such  a  case.^  The  cases  cited  below  hold  that  the 
proper  remedy  is  in  assumpsit,  or  at  least  that  covenant  would 
not  lie.^  "  The  word  'covenant,'  in  strictness,  does  not  apply 

1  Atlantic  Dock  Co.  v.  Leavett,  54  N.  Y.  35  ;   Finley  v.  Simpson,  2  Zab.  311. 

2  Post,  3  vol.  589,  pi.  49 ;  Goodwin  v.  Gilbert,  9  Mass.  510  ;  Nugent  v.  Riley, 
1  Met.  120;  Newell  v.  Hill,  2  Met.  180;  Pike  y.  Brown,  7  Cush.  133;  Hinsdale 
V.  Humphrey,  15  Conn.  431;  Maule  v.  Weaver,  7  Penn.  St.  329;  Johnson  v. 
Mussey,  45  Vt.  419  ;  Gale  ?;.  Nixon,  6  Cowen,  445;  Trustees,  &c.  v.  Spencer,  7 
Oliio,  pt.  2,  151 ;  Burnett  v.  Lynch,  5  B.  &  C.  589 ;  Piatt  on  Gov.  18. 


CH.  X.  §  4.]  ESTATES    FOR   YEARS.  487 

otherwise  than  to  such  agreements  as  are  executed  under  the 
solemnity  of  a  seal ;  but,  in  common  parlance,  it  is  applied 
to  any  agreement,  whether  under  seal  or  not."  And  it  is  so 
applied  in  the  case  cited  below. ^ 

1.  These  covenants  are  either  implied  or  express,  or,  what 
is  the  same  thing,  covenants  in  law  or  in  deed.  And  the  same 
covenant  may  be  the  separate  covenant  of  one  of  the  parties, 
or  that  of  both,  according  as  it  applies  to  one  or  both  of  them.^ 
Implied  are  such  as  arise  by  construction  of  law  from 

the  use  of  certain  terms  *and  forms  of  expression  [*325] 
which  are  uniformly  held  to  constitute  an  agreement, 
though  no  express  words  of  covenant  or  agreement  are  con- 
nected with  them.  Among  these  are  "  grant,"  "  demise," 
"  lease,"  and  the  like.  From  the  word  "  demise,"  in  a  lease 
under  seal,  the  law  implies  a  covenant,  in  a  lease  not  under 
seal,  a  contract  for  title  to  the  estate  merely,  that  is,  for  quiet 
enjoyment  against  the  lessor  and  all  that  come  in  under  him 
by  title,  and  against  others  claiming  by  title  paramount  during 
the  term ;  and  the  word  "  let,"  or  any  equivalent  words  which 
constitute  a  lease,  have  the  same  effect,  but  no  more.^  The 
tendency  of  modern  decisions  is  against  implying  covenants, 
which  might  and  ought  to  have  been  expressed,  if  intended.^ 
The  presumption,  where  parties  have  entered  into  written 
engagements  with  express  stipulations,  is,  that,  having  ex- 
pressed some,  they  have  expressed  all  the  conditions  by  which 
they  intend  to  be  bound  under  the  instrument.^ 

2.  Thus  the  word  "  grant,"  or  "  demise,"  once  implied  an 
absolute  covenant  on  the  part  of  the  lessor  for  the  lessee's 
quiet  enjoyment  during  the  term,  unless  this  were  qualified, 
as  it  may  be,  by  a  more  limited  express  covenant.^     So  the 

1  Hayne  v.  Cummings,  16  C.  B.  n.  s.  426.  Garranter  signijie  a  defendre  son 
tenant  en  sa  seisin.  Britton,  197  b.  Nihil  aliud  est  quam  dejendere  et  acquietare 
tenentum  in  seisina  sua.     Bracton,  lib.  5,  480. 

2  Beckwith  v.  Howard,  6  R.  I.  1. 

3  Hart  V.  Windsor,  12  M.  &  W.  85. 

4  Sheets  v.  Selden,  7  Wall.  423.     ^  Aspdin  v.  Austin,  5  Ad.  &  E.  L.  n.  s.  684. 
s  Burton,  Real  Prop.  §  846.     But,  by  statute  now  in  England,  "  grant "  no 

longer  implies  a  covenant  in  law.  Stat.  8  &  9  Vict.  c.  106,  §  5  ;  Smith,  Land. 
&  Ten.  68.  But  the  word  "  demise  "  still  retains  this  power.  Wras.  Real  Prop. 
367.  In  New  York  all  actions  upon  implied  covenants  in  the  conveyance  of 
lands  are  taken  away  by  statute,  as  held  in  Kinney  v.  Watts,  14  Wend.  38,  the 


488  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

woi'cl  "  lease  "  has  been  held  to  be  equivalent  to  "  demise  " 
in  creating  an  implied  covenant.^  These  words  lease  or  demise 
imj^ly  a  covenant  against  a  paramount  title,  and  against  acts 
of  the  landlord  which  destroy  the  beneficial  enjoyment  of  the 
premises ;  ^  and  this  extends  to  a  demise  of  a  right  to  collect 
wharfage  for  a  term  of  time,  although  not  corporeal  property 
in  its  character,^  and  furthermore,  that,  if  the  lessee  is  evicted 
by  a  paramount  title,  he  will  be  discharged  from  payment  of 
rent.*  But  if  one  lease  the  mines  or  veins  of  ore  in  certain 
lands,  he  does  not  thereby  warrant  that  there  are  such  min- 
erals there  ;  and  if  it  turns  out  that  there  are  none,  nothing 
passes  by  the  lease. ^  The  law  as  well  as  the  reason  of  it,  in 
respect  to  these  implied  covenants,  so  far  as  it  was  applicable 
to  the  case  then  under  consideration,  was  thus  satisfactorily 
stated  by  Shaw,  C.  J.,  in  Dexter  v.  Manley,  where  the  terms 
used  were  "  has  demised  and  leased."  "  It  is  sufficient  for 
the  present  case  that  the  lease  contains  an  implied  covenant 
which  is  a  good  warranty  by  the  defendant  (the  lessor) 
against  his  own  acts.  Every  grant  of  any  right,  interest,  or 
.benefit,  carries  with  it  an  implied  undertaking  on  the  part  of 
the  grantor  that  the  grant  is  intended  to  be  beneficial,  and 
that,  so  far  as  he  is  concerned,  he  will  do  no  act  to  interrupt 
the  free  and  peaceable  enjoyment  of  the  thing  granted.''  ^ 
"  Every  lease,"  say  the  court  of  Pennsylvania,  "  implies  a 
covenant  for  quiet  enjoyment.  But  it  extends  only  to  the 
possession ;  and  its  breach,  like  that  of  a  warranty  for  title, 
arises  only  from  eviction  by  means  of  title.  It  does  not  pro- 
correctness  of  which  has  been  questioned.  See  Lalor,  Real  Est.  246  ;  Tone  v. 
Brace,  8  Paige,  Ch.  597  ;  Williams  v.  Burrell,  1  C.  B.  429  ;  Piatt,  Gov.  47  ;  Rawle, 
Gov.  362,  n. ;  Mayor  v.  Mabie,  3  Kern.  160,  commenting  on  Kinney  v.  Watts. 
See  Mark  v.  Patchin,  infra. 

1  Maule  V.  Ashmead,  20  Penn.  St.  482  ;  Ross  v.  Dysart,  33  Penn.  St.  452  ;  Ham- 
ilton V.  Wright,  28  Mo.  199.  See  contra,  Lovering  v.  Lovering,  13  N.  H.  513; 
Hamilton  v.  Wright,  28  Mo.  199;  Maederw.  Garondelet,  26  Mo;  112. 

2  Wade  V.  Halligan,  16  III.  507 ;  Playter  v.  Gminingham,  21  Gal.  233.  "  Grant 
and  demise"  in  a  lease  amount  to  an  implied  covenant  for  quiet  enjoyment : 
"  Let  and  lease  "  do  not  imply  a  covenant.   Lovering  v.  Lovering,  13  N.  H.  518. 

8  Mayor  v.  Mabie,  3  Kern.  157.  *  Wells  v.  Mason,  4  Scamm.  84. 

6  Harland  v.  Lehigh  Goal  Go.,  35  Penn.  292. 

6  Dexter  v.  Manley,  4  Gush.  24.  Where  there  is  an  implied  contract  in  a 
lease,  it  relates  only  to  the  estate,  not  the  condition  of  the  property.  Hart  v. 
Windsor,  12  M.  &  W.  86. 


CH.  X.  §  4.]  ESTATES    FOR   YEARS.  489 

tect  against  entry  and  ouster  of  a  tort  feasor."  A  tenant  has 
a  right  to  call  his  landlord  into  defence  ;  and,  if  eviction  follows 
as  the  result  of  a  failure  to  defend  him,  he  can  then  refuse  to 
pay  rent,  and  fall  back  upon  his  covenant  for  quiet  enjoyment 
to  recover  his  damages.^  In  New  York,  a  lease  contains  an 
implied  covenant  for  quiet  enjoyment ;  and  if  the  lessee  is  dis- 
possessed, whether  he  shall  recover  damages,  and  to  what 
amount,  seems  to  depend  upon  circumstances.  He  can  ordi- 
narily recover  only  such  rent  as  he  has  advanced,  and  such 
mesne  profits  as  he  is  liable  to  pay  over.  But  the  exceptions 
to  this  rule  are,  if  the  lessor  is  guilty  of  fraud,  or  can  convey 
and  will  not,  or  he  covenanted  to  convey  when  he  knew  he 
had  no  authority  to  contract,  or  where  it  is  in  his  power  to 
remedy  a  defect  in  his  title,  and  he  refuses  or  neglects  to  do 
it,  or  where  he  refuses  to  incur  expenses  which  would  enable 
him  to  fulfil  his  contract,  the  lessor  is  liable  to  the  lessee  for 
the  loss  of  the  bargain  in  analog}'  to  the  sale  of  personal  prop- 
erty. Thus  where  the  owner  of  mortgaged  property  leased 
it  for  six  years,  and  then  encouraged  the  mortgagee  to  fore- 
close the  mortgage,  and  at  the  sale  for  that  purpose  joined  a 
third  person  in  purchasing  the  estate,  and  they  then  both 
joined  in  expelling  the  lessee  during  his  term,  it  was  held 
that  he  might  recover  of  his  lessor  upon  this  implied  covenant 
in  his  lease  the  value  of  the  unexpired  term  at  the  time  of  the 
eviction  over  and  above  the  rent  reserved  in  the  lease.^  But 
where  a  guardian  made  a  lease  without  having  complied  with 
certain  prerequisites  to  its  validit}^,  and,  upon  his  being  re- 
moved, his  successor  evicted  the  lessee,  it  was  held  that  inas- 
much as  the  lease  was  void  no  estate  passed,  and  therefore  no 
implied  covenant  was  raised  by  the  words  "  leased  and  de- 
mised." ^  Where  the  lessor  refused  to  let  the  lessee  enter  into 
and  enjoy  the  premises,  it  was  held  that  he  might  sue  the 
lessor  upon  his  covenant  for  damages,  and  need  not  resoit  to 
his  remedy  by  an  action  of  ejectment.  The  measure  of  dam- 
ages in  such  case  would  include  the  difference  between  the 
rent  reserved  in  the  lease  and  the  value  of  the  premises  for 
the  time.     And  if  the  lessee  shall,  in  good  faith,  have  incurred 

1  Schuylkill,  &c.,  R.  R.  v.  Schmoele,  57  Penii.  St.  273. 

2  Mark  v.  Patcliin,  42  N.  Y.  107.  3  Webster  v.  Conley,  46  111.  17. 


490  LAW   OF   REAL   PROPERTY.  [bOOK    L 

expenses  in  preparing  to  remove  and  enter  upon  the  premises, 
lie  may  recover  these,  and,  in  an  extreme  case,  might  recover 
for  loss  of  time  in  looking  for  another  place,  or  seeking  em- 
ployment rendered  necessary  by  being  deprived  of  the  leased 
premises.^     But  though  thus  limited,  this  case  does  not  im- 
pugn the  doctrine  of  the  cases  already  cited.     So  a 
[*326]  covenant  for  *  quiet  enjoyment  is  implied  in  a  lease 
of  an  incorporeal  hereditament.^ 
2  a.  Though  the  subject  of  implied  covenants  in  leases  is 
too  broad  to  be  embraced  in  its  details  in  a  work  like  the  pres- 
ent, the  reader  may  find  it  discussed  in  some  of  its  bearings 
by  Mr.  Butler  (Note  to  Co.  Lit.  384  a).     And  it  may  be  re- 
marked that  a  covenant  of  quiet  enjoyment  in  a  lease,  whether 
express  or  implied,  relates  only  to  the  title,  and  not  to  the  un- 
disturbed enjoyment  of  the  premises  demised,  where  there 
has  been  no  eviction.^     The  lessor  does  not  warrant  against 
the  acts  of  strangers,*  nor  agree  to  put  the  lessee  into  posses- 
sion.    The  extent  of  his  implied  engagement  is,  that  he  has  a 
good  title,  and  can  give  a  free,  unincumbered  lease  for  the 
time  demised.^     Still,  every  lease  imphes  a  covenant  of  quiet 
enjoyment ;  and  if  the  premises  are  recovered  by  a  third  party 
against  the  tenant,  the  rent  is  gone,  though  the  tenant  attorn 
to  the  one  recovering  such  judgment,  before  the  habere  facias 
shall  have  been  served.     Nor  could  the  lessor  recover  of  the 
tenant  rent  accruing  during  such   period  of  eviction,  even 
though  he  may  sue  a  new  action,  and  recover  a  judgment  for 
possession  of  the  premises.     The  lessor's  remedy  for  the  inter- 
mediate rents  would  be  against  his  adversary  in  such  second 
suit,  while  the  tenant,  in  such  a  case,  would  attorn  to  him 
accain  as  his  lessor.^     A  lessor  as  such,  in  the  absence  of  some 
covenant  or  agreement  to  that  effect,  is  not  bound  to  make 
repairs  upon  the  leased  premises.'^     But  if  the  lessor  volun- 

1  Adair  v.  Bogle,  20  Iowa,  238,  245. 

'^  Mayor  of  New  York  v.  Mabie,  3  Kern.  150. 

8  Edgerton  v.  Page,  1  Hilton,  333 ;  Piatt,  Cov.  312. 

4  Schilling  v.  Holmes,  23  Cal.  230;  Branger  v.  Manciet,  30  Cal.  626;  Hayes 
V.  Bickerstaff,  Vaugiian,  118;  Moore  v.  Webber,  71  Penn.  St.  429. 

5  Mechan.  «Sic.  Ins.  Co.  v.  Scott,  2  Hilton,  550;  Playteru.  Cunningham,  21  Cal. 
232. 

6  Ross  V.  Dysart,  33  Penn.  St.  452.     See  Morse  v.  Goddard,  13  Met.  177. 

1  Estep  V.  Estep,  23  Ind.  114;  Gott  v.  Gandy,  22  E.  L.  &  Eq.  173  ;  Leavitt 


CH.  X.  §  4.]  ESTATES   FOR   YEARS.  491 

tarilj  undertakes  to  repair  the  premises,  and  do  it  in  so  care- 
less a  manner  as  to  cause  an  injury  thereby  to  the  tenant,  he 
will  be  liable  in  damages  therefor. ^  If  he  covenants  to  build 
a  certain  building  upon  the  premises,  and  do  so,  and  the  same 
is  destroyed,  he  is  not  bound  to  rebuild  it.^  Nor  to  compen- 
sate the  lessee  for  repairs  made  by  him.  But  where  one  made 
repairs  or  did  work  upon  premises  under  a  parol  promise  of 
the  owner  to  let  them  to  him,  and  the  owner  then  refused  to 
lease  them  to  him,  it  was  held  he  could  recover  of  the  owner 
for  the  same.^  Nor  is  he  bound  to  protect  his  tenant  from  the 
consequences  of  the  act  of  an  adjoining  owner,  whether  lawful 
or  not,  in  excavating  his  land  so  near  the  demised  premises  as 
to  cause  injury  to  them.^  So  where  one  held  a  term  under  a 
lease  by  which,  if  the  lessor  sold  the  premises,  he  could  deter- 
mine the  lease  by  giving  so  many  days'  notice,  and  made  an 
under-lease  for  a  certain  time,  using  the  words  "  lease,  de- 
mise, and  let,"  but  in  the  lease  there  was  a  proviso  as  to  car- 
rying away  improvements  made  by  him,  "  in  case  the  land  is 
sold,"  it  was  held  that  the  sub-tenant  had  no  cause  of  action 
upon  the  implied  covenant  in  his  lease  in  consequence  of  the 
term  being  defeated  by  a  sale  of  the  premises  by  the  original 
lessor.  So  far  as  the  words  above  mentioned  implied  a  war- 
ranty of  title,  they  were  qualified  by  the  proviso  in  the  lease.^ 
But  a  lessor  may  bind  himself  to  repair  the  premises,  and  if 
by  the  terms  of  his  lease  he  has  a  right  to  enter  and  view  and 
make  improvements,  he  is  bound  to  make  the  necessary  re- 
pairs without  waiting  for  a  special  demand  or  notice  so  to  do.^ 
The  lessee,  however,  is  not  absolved  from  paying  rent,  if  the 
lessor,  in  such  a  case,  fails  to  make  the  repairs,  nor  would  it 

V.  Fletcher,  10  Allen,  121 ;  Elliott  v.  Aikin,  45  N.  H.  36.  And  the  same  rule 
was  in  the  Civil  Law,  1  Brown,  C.  L.  195 ;  Sheets  v.  Selden,  7  Wall.  423  ;  Gill 
V.  Middleton,  105  Mass.  478. 

1  Gill  V.  Middleton,  105  Mass.  477. 

2  Cowell  V.  Lumley,  39  Cal.  151. 

8  White  V.  Wieland,  109  Mass.  291 ;  Williams  v.  Bemis,  108  Mass.  91. 

*  Sherwood  v.  Seaman,  2  Bosw.  127  ;  McCarty  v.  Ely,  4  E.  D.  Smith,  376  ; 
Howard  (•.  Doolittle,  3  Duer,  404.  See  Pargoud  v.  Tourne,  13  La.  An.  292 ;  Gill 
V.  Middleton,  sup. 

5  O'Connor  v.  Daily,  109  Mass.  235. 

6  Hayden  v.  Bradley,  6  Gray,  425.  See  Vyse  v.  Wakefield,  6  M.  &  Wels.  -152, 
453;  Keys  v.  Powell,  2  A.  K.  Marsh.  254. 


492     ,  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

amount  to  an  eviction,  or  justify  his  abandoning  the  possession 
of  the  premises.  His  remedy  is  by  an  action  against  the 
lessor  upon  his  covenant  or  agreement.^  So  where  a  lessee 
has  actually  entered  under  his  lease,  and  is  sued  for  rent,  he 
cannot  set  up  in  defence  a  failure  on  the  part  of  his  lessor  to 
do  certain  agreed  acts  in  relation  to  the  premises.  He  may, 
in  such  case,  recoup  in  damages  for  the  lessor's  breach,  or  may 
have  a  separate  action  therefor,  but  is  not  exonerated  from 
liability  to  pay  rent.^ 

3.  There  are  covenants  also  implied  on  the  part  of  the 
lessee,  as  that  to  pay  the  rent,  resulting  from  the  formal  words 
"yielding  and  paying"  a  stipulated  sum.^  If  no  time  for 
the  payment  of  the  rent  is  fixed  in  the  lease,  it  is  understood 
to  be  at  the  end  of  the  year.*  And  the  very  acceptance  of  a 
lease  imposes  upon  the  lessee  an  implied  obligation  to  use  the 
premises  in  a  proper  and  husbandlike  manner.^  Mr.  Comyn 
states  the  implied  covenant  or  obligation  of  a  lessee  growing 
out  of  the  relation  of  landlord  and  tenant  to  be,  to  treat  the 
premises  demised  in  such  manner  that  no  injury  be  done  to 
the  inheritance,  but  that  the  estate  may  revert  to  the  lessor 
undeteriorated  by  the  wilful  or  negligent  conduct  of  the 
lessee.  He  is  bound,  therefore,  to  keep  the  soil  in  a  proper 
state  of  cultivation,  to  preserve  the  timber,  and  to  support 
and  repair  the  buildings.  These  duties  fall  upon  him  without 
any  express  covenant  on  his  part,  and  a  breach  of  them  will, 
in  general,  render  him  liable  to  be  punished  for  waste.^ 
Where  one  took  a  lease  of  a  farm  dated  July  18,  while  there 
was  a  crop  of  hay  upon  the  premises,  for  five  years,  and  in 
the  fifth  year  cut  the  grass  on  the  10th  of  July,  and  took  the 
crop,  it  was  held  to  be  no  violation  of  his  covenant  as  being 
against  the  rules  of  good  husbandry,  although  he  thereby  took 

1  Tibbetts  v.  Percy,  24  Barb.  39;  Spickles  v.  Sax,  1  E.  D.  Smith,  253. 

2  Kelsey  v.  Ward,  38  N.  Y.  83. 

3  Smith,  Land.  &  Ten.  96;  Piatt,  Gov.  42  ;  Eoyer  y.  Ake,  3  Penn.  461 ;  Ivimp- 
ton  V.  Walker,  9  Vt.  198 ;  Van  Kensselaer  v.  Smith,  27  Barb.  140. 

*  Ridgley  v.  Stillwell,  27  Mo.  128. 

5  Nave  V.  Berry,  22  Ala.  382.  An  express  covenant  to  personally  yield  up 
the  premises  in  good  repair  is  not  broken  by  leaving  quantities  of  rubbish  upon 
the  premises.     Thorndike  v.  Burrage,  111  Mass.  532. 

6  Com.  Land.  &  Ten.  188. 


CH.  X.  §  4.]  ESTATES   FOR    YEARS.  493 

six  crops  from  the  land  within  his  term  of  five  years.^  In 
Illinois,  it  is  held  to  be  the  duty  of  a  tenant  to  pay  all 
taxes  assessed  upon  the  premises  during  his  tenancy ;  and  if 
he  fails  to  do  this,  and  the  land  be  sold  for  taxes,  and  he  pur- 
chases it,  he  cannot  hold  it  against  the  owner  of  the  inherit- 
ance.2  If  the  lessor  covenant  to  pay  the  taxes  assessed  upon, 
the  leased  premises,  and  fails  to  do  so,  the  lessor  can  recover 
the  amount  assessed,  although  he  himself  may  not  have  paid 
thera.^ 

4.  There  is  an  important  distinction  to  be  observed  between 
express  and  imj)lied  covenants  in  a  lease,  since  one  who  enters 
into  an  express  covenant  remains  bound  by  it  though  the  lease 
be  assigned  over,  while  such  as  are  implied  are  coextensive 
only  with  the  occupation  of  the  premises,  the  lessee,  for  in- 
stance, not  being  liable  under  his  implied  covenant  for  rent 
after  his  assignment  to  another,  and  the  acceptance  of  rent 
by  the  lessor  from  the  assignee.*  The  lessee  remains  liable 
upon  his  express  covenant  to  pay  rent,  notwithstanding  his 
having  assigned  his  lease  with  the  lessor's  assent,  and  the  les- 
sor may  have  accepted  rent  from  the  assignee.  The  lessor,  in 
such  case,  may  sue  the  lessee  or  his  assignee,  or  both,  at  his 
election,  and  at  the  same  time,  though  he  can  have  but  one 
satisfaction.  The  lessee  continues  liable  upon  his  personal 
covenant,  in  the  nature  of  a  surety  for  his  assignee,  who  is 
ultimately  liable  to  him  for  the  amount  paid  by  him.  But  the 
liability  of  a  lessee  upon  the  implied  covenants  in  his  lease 
continues  only  so  long  as  he  holds  the  estate,  where  he  as- 
signs with  the  consent  of  the  lessor,  and  depends  upon  the 
privity  of  estate.  This  is  true  in  respect  to  assignees,  both  as 
to  express  and  implied  covenants,  and  their  liability  ceases 

1  Willey  V.  Connor,  44  Vt.  71. 

-  Prettyman  v.  Walston,  34  111.  191,  192.  In  Massachusetts  the  landlord  is 
ultimately  liable  for  the  taxes  assessed  upon  leased  estates  in  the  absence  of  a 
special  agreement  between  him  and  the  tenant.     Gen.  Stat.  c.  11,  §  9. 

8  Rector,  &c.  v.  Higgins,  48  N.  Y.  532. 

*  Auriol  V.  Mills,  4  T.  R.  98 ;  Rawle,  Gov.  363,  n. ;  Kimpton  v.  Walker,  9  Vt. 
199 ;  Walker  v.  Thysick,  5  Penn.  St.  193.  The  language  of  Shaw,  G.  J.,  in 
Patten  v.  Deshon,  1  Gray,  330,  applies  only  where  the  lessor  has  expressly  agreed 
to  accept  the  assignee  as  alone  liable  for  the  rent,  it  being  in  effect  a  surrender 
by  lessee.  Thursby  i;.  Plant,  1  Saund.  240;  Way  v.  Reed,  6  Allen,  364,  369, 
7  Am.  L.  Rev.  244. 


494  LAW   OF    REAL   PROPERTY.  [BOOK   L 

with  the  privity  of  estate  between  them  and  the  lessors.  Such 
assignee,  therefore,  is  not  liable  for  any  breach  committed  be- 
fore he  became  assignee,  nor  for  any  such  breach  occurring 
after  he  has  parted  with  the  estate  and  possession  to  a  new 
assignee,  although  he  did  this  for  the  ver}-  purpose  of  escaping 
such  liability,  because,  by  so  doing,  he  destroys  the  privity  of 
estate  on  which  it  depends.  But,  while  the  assignee  contin- 
ues to  hold  the  estate,  he  would  be  liable  for  the  rent  fixed 
by  the  lease,  without  regard  to  the  value  of  the  premises. 
Nor  does  it  matter  how  he  becomes  such  assignee.  His  lia- 
bility would  attach  although  he  purchased  the  estate  at  a 
sheriffs  sale.^  Another  important  distinction  is  this  :  If  one 
ha-sdng  an  estate  for  life  make  a  lease  for  years  by  words  im- 
plying a  covenant  for  quiet  enjoyment  alone,  such  as  "  lease," 
"  demise,"  &c.,  and  die  before  the  expiration  of  the  term,  the 
lessee  would  have  no  action  against  his  executor  for  being 
evicted  by  the  remainder-man.''^  But  if  with  his  life-estate 
the  lessor  had  a  power  of  aiDpointing  an  estate  after  his  death, 
and,  having  made  his  lease  for  years,  he  fails  to  make  it  good 
by  exercising  such  power,  his  executors  would  be  liable  to  an 
action  upon  the  implied  covenant  in  his  lease,  because  he  had 
the  power  to  make  his  lease  good,  and  failed  to  do  so  ;  whereas 
in  the  other  case  supposed  he  had  no  such  power.^ 

4  a.  As  a  general  proposition,  an  assignee  is  only  liable  for 
a  breach  of  covenant  which  occurs  while  he  remains  possessed 
of  the  estate.  Thus,  if  a  lessee  assign  his  term  to  A,  who 
holds  the  premises  for  a  while  and  then  assigns  to  B,  who  holds 
them  when  the  rent  falls  due,  the  lessor  may  sue  the  lessee 
upon  his  personal  covenant  to  pay  the  rent.  Or  he  ma}'  sue 
B,  and  recover  by  reason  of  the  privity  of  estate  between 
them.  But  he  could  not  hold  A  liable  for  any  part  of  the 
rent  by  reason  of  his  having  held  the  premises  as  assignee  for 
a  part  of  the  time.*     But  where  the  lessee  assigned  his  terra, 

1  Sultiff  w.  Atwood,  15  Ohio  St.  186, 198, 199  ;  Hornby  v.  Houlditch,  Andrews 
R.  40  ;  Tayl.  Land.  &  Ten.  214  ;  Thursby  v.  Plant,  1  Saund.  241  b,  note  ;  Post, 
*  331 ;    Com.  Land.  &  Ten.  257,  275. 

2  McClowry  v.  Croghan,  1  Grant's  cases,  307,  311. 

3  Hamilton  v.  Wright,  28  Mo.  199;  Adams  v.  Gibney,  6  Bing.  656. 

*  Sanders  v.  Partridge,  108  Mass.  656 ;  Taylor,  L.  &  T.  §  449 ;  Pitcher  v. 
Tovey,  4  Mod.  Rep.  71 ;  Graves  v.  Porter,  11  Barb.  592 ;  Burnett  v.  Lynch,  5 
B.  &  C.  689 ;  Grandin  v.  Carter.  99  Mass.  16. 


CH.  X.  §  4.]  ESTATES    FOR   YEARS.  495 

and  the  assignee  gave  notice  to  the  lessor,  and  orally  agreed 
to  pay  him  the  rent  as  it  should  accrue  due,  but  before  the 
time  of  its  payment  reassigned  the  term  to  the  original  lessee 
without  giving  the  lessor  notice,  and  the  lessor,  supposing  the 
assignee  still  to  be  the  tenant,  sued  him  for  the  rent,  it  was 
held,  that  by  his  silence,  whereby  the  lessor  was  induced  to 
bring  the  suit  and  incur  cost,  the  assignee  was  estopped  to 
deny  his  tenancy,  and  liability  to  pay  the  rent.^ 

5.  Another  important  distinction  in  respect  to  covenants  in 
a  lease  is  between  such  as  run  with  the  land,  binding  assignees, 
or  enuring  to  the  benefit  of  assignees,  and  such  as  are  personal 
only  and  do  not  bind  the  estate.  It  is  also  laid  down  by  one 
writer  of  high  authority,  that,  "  by  the  common  law,  covenants 
between  the  lessor  and  the  lessee  relating  to  land  would,  in 
general,  run  with  it  on  both  sides."  "  But  the  benefit  of  a 
condition  was  entirely  lost  by  alienation  of  the  reversion."  ^ 
But  that  this  right  existed  at  common  law  for  the  assignee  of 
a  reversion  to  sue  upon  a  covenant  of  a  lessee  to  pay  rent  is 
denied  by  other,  and,  it  would  seem,  better  authori- 
ties.^ *  However  this  may  have  been,  the  statute  32  [*327] 
Hen.  VIII.  c.  34,  referred  to  in  a  former  page  of  this 
work,  attaches  both  the  benefit  and  the  obligation,  of  cove- 
nants as  well  as  of  conditions,  to  the  reversion  in  the  hands  of 
a  grantee  or  assignee.* 

5  a.  The  reader  is  referred  to  what  is  found  in  a  later  part 
of  this  work  ^  for  an  attempt  to  define  how  far,  and  in  what 
cases,  covenants  run  with  lands.  The  subject  is  fully  treated 
of  in  the  American  edition  of  Smith's  Leading  Cases,^  in  com- 
menting upon  Spencer's  case,'^  where  the  early  law  is  embodied. 
There  were  some  covenants,  that,  for  instance,  to  pay  rent, 
which  raised  a  liability  against  the  tenant  in  favor  of  an  as- 
signee of  the  reversion  at  the  common  law,  the  remedy  being 

1  Meister  v.  Birney,  24  Mich.  440. 

2  Burton,  Real  Prop.  §§  855,  856. 

«  Crawford  v.  Chapman,  17  Ohio,  449 ;  Thursby  v.  Plant,  1  Saund.  240,  n.  8 ; 
Patten  v.  Deshon,  1  Gray,  325.  See  Thrale  v.  Oornwall,  1  Wils.  165 ;  Barker  v. 
Darner,  3  Mod.  337 ;  Vyvyan  v.  Arthur,  1  B.  &  C.  410.     See  Piatt,  Gov.  632 

4  Burton,  Real  Prop.  §  856;  Piatt,  Cov.  533. 

6  Vol.  2,  pp.  *  13-*  17. 

«  Vol.  1,  5th  Am.  ed.  p.  139  ei  seq.  ">  5  Rep.  16. 


496  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

in  debt  but  not  in  covenant,  as  the  only  privity  between  the 
parties  was  in  estate  and  not  in  contract,^  though  it  was  held 
in  one  case  hereafter  referred  to,  that  a  covenant  to  grind 
at  the  lessor's  mill  might  be  sued  by  the  devisee  of  the  lessor 
against  the  administratrix  of  the  lessee.^  The  object  of  the 
statute  of  32  Hen.  VIII.  c.  34  was  to  extend  the  privity  of 
contract  from  reversioner  to  reversioner,  and  the  right  to  sue 
in  covenant  to  actions  by  and  against  assignees.^  Before  the 
statute  of  4  Anne,  c.  16,  §  9,  although  by  an  assignment  of 
the  reversion  there  was  a  privity  of  estate  created  between  the 
tenant  and  the  assignee,  there  was  no  privity  of  contract,  and 
the  assignee  could  not  sue  in  covenant  in  his  own  name,  unless 
the  tenant  had  attorned  to  him.  And  now,  inasmuch  as  the 
statute  of  Anne  is  not  in  force  in  Illinois,  a  purchaser  of  a 
reversion  cannot  sue  for  rent  in  his  own  name  upon  the  cove- 
nant of  the  lessee  without  showing  something  answering  to  an 
attornment.^  This  statute  of  Hen.  VIII.  is  held  to  be  in  force 
in  Massachusetts,^  in  Pennsylvania,^  Illinois,'''  and  Connecti- 
cut,^ but  was  never  in  force  in  New  York  till  re-enacted ;  and 
it  is  there  made  to  extend  to  grants  in  fee  where  rent  is  re- 
served, and  to  leases  for  life  or  for  years.^  Nor  is  it  in  force 
in  Ohio.^''  It  would  be  transcending  the  objects  proposed  in 
this  work  to  attempt  to  define  with  any  considerable  minute- 
ness of  detail  the  line,  often  subtle  and  refined,  which  dis- 
tinguishes between  covenants  running  with  land  and  other 
covenants  relating  to  it.     The  language  of  Best,  J.,  illustrat- 

1  Thursby  v.  Plant,  1  Saund.  240  ;  Patten  v.  Deshon,  1  Gray,  325. 

2  Vyvyan  v.  Arthur,  1  B.  &  C.  410.  See  also  Piatt,  Gov.  532  ;  2  Piatt,  Leases, 
87,  382 ;  Brett  v.  Gumberland,  Gro.  Jac.  522 ;  Porter  v.  Swetnam,  Styles,  406  ; 
Van  Rensselaer  v.  Hays,  19  N.  Y.  81. 

8  Patten  v.  Deshon,  aup. ;  Piatt,  Gov.  533,  534 ;  Van  Rensselaer  v.  Smith,  27 
Barb.  151 ;  Gook  v.  Brightly,  46  Penn.  St.  445. 

4  Fisher  v.  Deering,  60  111.  114 ;  overruling  Chapman  v.  McGrew. 

5  Rowland  v.  Coffin,  12  Pick.  125 ;  Patten  v.  Deshon,  sup. 

6  Streaper  v.  Fisher,  1  Rawle,  161;  Scott  v.  Lunt,  7  Peters,  606.  See  3 
Binney,  620. 

7  Plumleigh  v.  Gook,  13  111.  669.  «  Baldwin  v.  Walker,  21  Conn.  168. 

9  Van  Rensselaer  v.  Smith,  27  Barb.  151 ;  Van  Rensselaer  v.  Hays,  19  N.  Y, 
81,  84 ;  NichoU  v.  N.  Y.  &  Erie  Railroad,  2  Kern.  131,  132  ;  Willard  v.  Tillman, 
2  Hill,  276. 

1"  Masury  V.  Southworth,  9  Ohio  St.  346  ;  Crawford  v.  Chapman,  17  Ohio,  449. 


CH.  X.  §  4.]  ESTATES    FOR   YEARS.  497 

ing  this,  will  be  found  cited  upon  a  later  page  (*330)  ;  and 
the  language  of  the  same  judge  in  another  case,  where  the 
covenant  was  to  insure,  is  this :  "  A  covenant  in  a  lease 
which  the  covenantee  cannot,  after  his  assignment,  take 
advantage  of,  and  which  is  beneficial  to  the  assignee  as 
such,  will  go  with  the  estate  assigned."  "It  is  a  covenant 
beneficial  to  the  owner  of  the  estate,  and  to  no  one  but 
the  owner  of  the  estate,  and  therefore  may  be  said  to  be 
beneficial  to  tJie  estate,  and  so  directly  within  the  principle 
on  which  the  covenants  are  made  to  run  with  the  land."  ^ 
Where  the  lessee  was,  by  the  terms  of  his  lease,  at  liberty  to 
purchase  the  estate  at  a  certain  price  at  the  end  of  the  term, 
it  was  held,  that,  by  the  sale  and  assignment  of  his  lease, 
his  assignee  had  a  right  to  claim  the  conveyance.^  And  so 
far  as  a  covenant  imposing  a  burden  upon  land  is  held  to  run 
with  the  estate  or  otherwise,  the  rule  as  stated  by  Gould,  J., 
may,  perhaps,  be  still  more  definite,  intelligible,  and  easy  of 
application,  depending  upon  whether  such  covenant  entered 
or  not  into  the  original  consideration  upon  which  the  convey- 
ance, with  which  it  was  connected,  was  made  ;  "  since  where 
the  covenants  are  in  the  very  conveyance  by  which  the  cove- 
nantor, &c.,  acquired  his  land,  the  performance  of  those 
covenants,  &c.,  plainly  forms  a  part  of  the  consideration 
without  which  the  conveyance  would  not  have  been  made."  ^ 
An  assignee  of  a  lessor  may  have  debt  for  rent  against  an 
assignee  of  the  lessee  where  the  letting  has  been  by  an 
indenture  of  lease.^ 

6.  The  statute  does  not  extend  to  covenants  merely  collat- 
eral, but  only  such  as  concern  the  land  demised  ;  ^  and,  under 
it,  covenant  will  lie  both  by  and  against  the  assignee  of  the 
reversion  of  part  of  the  premises,^  although  the  assignee  of 
the  reversion  of  such  part  cannot  avail  himself  of  a  condition 

1  Vernon  v.  Smith,  5  B.  &  Aid.  1.  See  also  Laffan  v.  Naglee,  9  Cal.  677,  a 
covenant  of  pre-emption  ;  Piatt,  Gov.  534. 

2  Napier  v.  Darling,  70  Penn.  St.  67  ;  Kerr  v.  Day,  14  Penn.  St.  112. 

3  Van  Rensselaer  v.  Smith,  27  Barb.  146,  147. 

*  Howland  v.  Coffin,  12  Pick.  125.  6  piatt,  Cor.  534 ;  Co.  Lit.  215  b. 

e  Piatt,  Cov.  536  ;  Twynam  v.  Pickard,  2  B  &  Aid.  105.    The  only  difference 
between  the  first  and  second  sections  of  the  statute  is,  that  the  words  in  the  first 
section  apply  to  the  assignee  of  the  reversion,  those  in  the  second  to  the  assignee 
of  tiie  term.    Patten  v.  Deshon,  1  Gray,  325. 
VOL.  I.  82 


498  LAW   OF   REAL    PROPERTY.  [rOOK   I. 

affecting  the  whole,  since  a  condition  cannot  be  apportioned.^ 
But,  to  render  one  liable  to  covenant  as  assignee,  he  must  take 
an  assignment  of  the  whole  or  of  a  part  of  the  premises  for 
the  whole  term.^ 

7.  If  a  lessee  assigns  the  whole  or  a  part  of  the  estate  for  a 
part  of  the  time,  it  is  a  sub-lease,  and  not  an  assignment;  and 
the  original  lessor  has  no  right  of  action  against  the  sub-lessee, 
who  remains  liable  only  to  his  lessor.  If  the  whole  or  a  part 
of  the  leased  premises  be  transferred  by  the  original  lessee  for 
the  residue  of  the  term,  it  is  an  assignment.  Therefore,  where 
a  tenant  for  years  underlet  a  part  of  the  premises  for  the  entire 
term,  and  then  assigned  to  a  third  person  all  his  interest  in  and 
to  the  original  lease,  it  was  held  that  liis  assignee  might  re- 
cover rent  of  the  person  to  whom  his  assignor  had  let 
[*328]  a  part  *  of  the  leased  premises.^ 

8.  And  it  is  true,  that,  at  the  common  law,  an  as- 
signee of  a  reversion  might  have  maintained  an  action  of  cov- 
enant for  any  of  the  implied  covenants  in  a  lease.^  And  in 
Ohio,  where  an  express  covenant  has  been  assigned  with  a 
reversion,  the  assignee  may  sue  for  its  breach  in  his  own  name, 
under  the  code  of  that  State,  although  the  statute  of  32  Hen. 
VIII.  c.  34  was  never  adopted  there.^  But  neither  at  com- 
mon law,  nor  by  the  statute  of  Henry  VIII.,  could  an  assignee 
sue  upon  a  breach  of  covenant  which  had  happened  before 
the  assignment.^ 

9.  Where  the  relation  of  landlord  and  tenant  has  become 
established,  it  attaches  to  all  who  take  through  or  under  the 
tenant  as  assignee,  as  distinguished  from  sub-lessee,  as  above 
explained,  whether  immediate  or  remote.'''     And  an  assignee 

1  Doe  V.  Lewis,  5  A.  &  E.  277 ;  1  Smith,  Lead.  Cas.  5th  Am.  ed.  93. 

2  Holford  V.  Hatch,  Doug.  183 ;  Fatten'  v.  Deshon,  1  Gray,  329 ;  Bagley  v. 
Freeman,  1  Hilton,  196;  Kain  v.  Hoxie,  2  Hilton,  311,  316;  Bedford  v.  Terhune, 
30  N.  Y.  460. 

3  Patten  v.  Deshon,  1  Gray,  325  ;  Astor  v.  Miller,  2  Paige,  Ch.  68.  See  Ful- 
ton V.  Stuart,  2  Ohio,  369,  that  assignment  of  a  part  of  tlie  premises  for  the  whole 
term  is  an  underletting.     See  Van  Rensselaer  r.  Smith,  27  Barb.  146. 

*  Piatt,  Gov.  532 ;  also  per  Bronson,  J.,  Willard  v.  Tillman,  2  Hill,  276. 

6  Masury  v.  Southworth,  9  Ohio  St.  340. 

c  Lewes  v.  Ridge,  Cro.  Eliz.  863  ;  1  Smith,  Lead.  Cas.  5th  Am.  ed.  172  ;  Piatt, 
Gov.  538  ;  Gibbs  v.  Ross,  2  Head,  437. 

■^  Jackson  v.  Davis,  5  Cow.  129;  Benson  v.  Bolles,  8  Wend.  175;  Overman  v. 
Sanborn,  27  Vt.  54 ;  Uowland  v.  Coffin,  12  Pick.  125. 


CH.  X.  §  4.]  ESTATES   FOR    YEARS.  499 

of  a  lease  is  bound  to  know  the  contents  of  the  lease  itself.^ 
A  recital  in  a  lease  that  the  premises  are  occupied  and  to  be 
occupied  as  a  lumber-3'ard  is  a  covenant  running  with  the 
land,  and  binds  the  assignee.^  And  even  if  the  tenant  convey 
in  fee,  the  lessor  may  elect  to  treat  the  purchaser  as  entering 
as  his  tenant,  or  he  may  treat  him  as  a  disseisor.^  But  it  may 
be  remarked  in  passing,  that  the  relation  of  landlord  and  ten- 
ant does  not  exist  between  the  tenant  of  a  mort^acjor  and  the 
assignee  of  a  mortgagee,  although  there  is  a  kind  of  tenancy 
between  mortgagor  and  mortgagee.^ 

10.  In  further  considering  what  covenants  bind  the  as- 
signees, it  was  before  stated  that  they  must  touch  and  concern 
the  thing  demised,  and  as  such  they  run  with  the  lands,  where 
there  is  a  privity  of  estate  between  covenantor  and  covenantee. 
Among  these  are  all  implied  covenants,  that  is,  all  such  cove- 
nants as  the  law  implies  from  the  usual  terms  of  leases  as 
before  explained,  such  as  "  lease  and  demise,"  "  yield- 
ing and  paying,"  and  the  *  like.^  Also  all  covenants  [*329] 
for  quiet  enjoyment,^  whether  they  are  expressed  or 
implied  ;  covenants  to  pay  rent ;  '^  to  insure  ;  ^  to  repair,  or  to 
deliver  up  in  good  condition  ;  ^  to  reside  on  the  premises  ;  ^'^  or 
to  pay  taxes. ^1  But  though  an  assignee  of  the  lessee  would 
be  bound,  a  sub-lessee  would  not,  nor  the  assignee  of  such 

I  Barroilhet  v.  Battelle,  7  Cal.  454.  2  De  Forest  v.  Byrne,  1  Hilton,  43. 
3  Jackson  v.  Davis,  5  Cow.  130 ;  Jaques  v.  Short,  20  Barb.  269. 

*  Jackson  v.  Rowland,  6  Wend.  666 ;  Jackson  v.  Laughead,  2  Johns.  75. 

6  Smith,  Land  &  Ten.  287,  n. ;  Piatt,  Gov.  42-44;  1  Smith,  Lead.  Gas.  5th 
Am.  ed.  123. 

6  Shelton  v.  Godman,  3  Gush.  318;  Markland  v.  Grump,  1  Dev.  &  Bat.  94; 
Gampbell  v.  Lewis,  3  B.  &  Aid.  392,  s.  c.  8  Taunt.  715;  Smith,  Land.  &  Ten. 
288,  note  by  Morris ;  Williams  v.  Burrell,  1  G.  B.  433. 

^  Hurst  V.  Rodney,  1  Wash.  G.  G.  375 ;  Howland  t-.  Coffin,  12  Pick.  125  ; 
Main  v.  Feathers,  21  Barb.  646 ;  Jaques  v.  Short,  20  Barb.  269  ;  Demarest  v.  Wil- 
lard,  8  Cow.  206 ;  Graves  v.  Porter,  11  Barb.  592. 

8  Vernon  v.  Smith,  5  B.  &  Aid.  1 ;  Doe  v.  Peck,  1  B.  &  Ad.  428. 

9  Demarest  v.  Willard,  8  Cow.  206  ;  Pollard  v.  ShaaflTer,  1  Dall.  210;  Broom's 
Maxims,  553  ;  Dean  of  Windsor's  case,  6  Rep.  24,  though  the  covenant  did  not 
in  terms  bind  assignees.     Spencer's  case,  5  Rep.  16. 

19  Tatem  v.  Gliaplin,  2  H.  Bl,  133,  though  assignee  be  not  named.  Van  Rens- 
selaer V.  Read,  26  N.  Y.  676. 

II  Dean  of  Windsor's  case,  5  Rep.  24  ;  Kearney  v.  Post,  1  Sandf.  105;  Astor 
V.  Miller,  2  Paige,  Ch.  68 ;  Host  v.  Kearney,  2  Comst.  394. 


500  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

sub-lessee.^  So  various  covenants  not  to  do  certain  acts  upon 
the  premises  are  of  this  character,  as  where  the  lessor  of  a 
mill  covenanted  in  his  lease  not  to  let  or  employ  any  other 
place  or  site  on  the  same  stream  for  a  mill  of  a  certain  kind, 
the  covenant  was  held  to  run  with  the  land,  and  its  breach 
might  be  sued  for  by  an  assignee.^  So  a  covenant  not  to  sell 
any  wood  or  timber  off  the  demised  premises,^  or  one  for  a 
particular  mode  of  cultivation  of  the  property,^  or  which  con- 
cerns husbandry  and  repairs,  runs  with  the  land,  and  binds  an 
assignee.^  So  a  covenant  for  a  perpetual  or  limited  renewal 
runs  wit-h  the  land.^  But  where  the  lease  provided  for  the 
lessee  enjoying  the  estate  for  a  certain  time,  with  a  right  to 
hold  it  as  much  longer  as  he  should  choose  after  the  expira- 
tion of  the  term,  at  the  same  rate,  no  definite  term  being  pre- 
scribed, it  was  held  not  to  be  a  covenant  running  with  the 
reversion  so  as  to  bind  the  lessor ;  and  he  having  died  during 
the  term,  the  lessee  having  chosen  to  hold  beyond  the  term, 
his  tenancy  became  one  from  year  to  year,  determinable 
by  notice  from  the  lessee  or  the  owner  of  the  reversion.'^ 
And  in  order  to  avail  himself  of  the  benefit  of  a  covenant  to 
renew,  the  lessee  must  give  notice  of  his  election  so  to  do 
before  the  expiration  of  the  term.^  So  a  covenant  made  by 
the  lessor  with  the  lessee  to  pay  for  new  erections  upon  the 
premises  runs  with  the  land,  and  may  be  enforced  by  an 
assignee  of  lessee  against  the  lessor.^  The  general  principle 
applicable  to  these  cases,  as  laid  down  by  Best,  J.,  in  Vyv- 
yan  v.  Arthur,  which  was  a  case  where  the  lessee  of  part  of  an 
estate  covenanted  with  the  lessor  to  do  a  service  at  a 
[*330]   *  mill  belonging  to  the  lessor  upon  another  part  of  the 

1  Martin  v.  O'Connor,  43  Barb.  521. 

2  Norman  v.  Wells,  17  Wend.  136.  See  also,  as  to  covenants  in  a  lease  of 
water-power  running  with  the  land  used,  Noonan  v.  Orton,  4  Wis.  341,  342  ; 
Morse  v.  Aldrich,  19  Pick.  749 ;  Wooliscroft  v.  Norton,  15  Wis.  204. 

8  Verplanck  v.  Wright,  23  Wend.  506,  *  Woodfall,  Land.  &  Ten.  81. 

6  Gordon  v.  George,  12  Ind.  408. 

6  Blackmore  v.  Boardman,  28  Mo.  420 ;  Piggot  v.  Mason,  1  Paige,  Ch.  412. 
^  West  Trans.  Co.  v.  Landing,  49  N.  Y.  499. 

8  Renoud  v.  Daskam,  34  Conn.  512. 

9  Hunt  V.  Danforth,  2  Curt.  C.  C.  592.  See  Verplanck  v.  Wright,  23  Wend. 
606,  embracing  in  summary  most  of  the  above  supposed  covenants.  See  also  1 
Smith,  Lead.  Cas.  5th  Am.  ed.  177. 


CH.  X.  §  4.]  ESTATES    FOR   YEARS.  601 

estate,  in  which  the  lessee  bound  his  assigns,  is  as  follows : 
*'  If  the  performance  of  the  covenant  be  beneficial  to  the 
reversioner  in  respect  of  the  lessor's  demand,  and  to  no  other 
person,  his  assignee  may  sue  upon  it ;  but  if  it  be  bene- 
ficial to  the  lessor  without  regard  to  his  continuing  owner  of 
the  estate,  it  is  a  mere  collateral  covenant,  upon  which  the 
assignee  cannot  sue."  And  in  that  case,  as  the  performance 
of  the  covenant  would  have  been  beneficial  to  the  owner  of 
the  reversion  and  to  no  other  person,  it  was  held  to  run 
with  the  land.i  If  the  covenant  be  to  do  some  act,  but  not 
upon  the  premises,  and  only  collateral  to  these,  such  as  to  build 
a  house  upon  other  land  of  the  lessor  than  that  which  is  de- 
mised, or  to  pay  a  collateral  sum  to  the  lessor  or  to  a  stranger, 
it  would  not  run  with  the  land.^ 

11.  While,  as  has  been  said,  there  are  many  covenants 
which  run  with  the  land,  binding  assigns  as  well  as  operating 
in  their  favor,  there  is  a  distinction  between  such  as  bind  as- 
signs without  being  named,  and  such  as  require  them  to  be 
named  in  order  to  charge  them  with  their  performance.  And 
the  distinction  seems  to  be  whether  the  subject-matter  of  the 
covenant  is  in  esse  at  the  time  of  the  demise  or  not.  If  it  is, 
the  covenant  binds  the  assignee,  whether  named  or  not ;  if  it 
is  not,  it  does  not  bind  him,  unless  expressly  named  therein. 
Thus  if  the  covenant  be  to  keep  houses  then  on  the  premises 
in  repair,  it  runs  with  the  land,  and  binds  the  assignee, 
though  not  named.  But  if  to  build  a  new  house  on  the  de- 
mised premises,  it  will  not  bind  assignees,  unless  named ; 
though,  as  remarked  by  a  writer,  "  the  good  sense  of  this  is 
not  very  easily  discoverable."  ^  The  rule  as  laid  down 
by  Lord  Ellenborough  *  upon  the  subject  is  this  :  "'  The  [*331] 
assignee  is  specifically  named,  and  though  it  were  for 

1  Vyvyan  v.  Arthur,  1  B.  &  C.  410 ;  Aikin  v.  Albany  R.  R.,  26  Barb.  289 ; 
Vernon  v.  Smith,  5  B.  &  Aid.  11 ;  Piatt,  Cov.  534. 

2  Spencer's  case,  5  Rep.  16  ;  Piatt,  Cov.  473  ;  Mayho  v.  Buckhurst,  Cro.  Jac. 
438  ;  Keppell  v.  Bailey,  2  Mylne  &  K.  517. 

3  Spencer's  case,  5  Rep.  16 ;  Piatt,  Cov.  466 ;  Id.  471 ;  Hunt  v.  Danforth,  2 
Curt.  C.  C.  604 ;  Sampson  v.  Easterby,  9  B.  &  C.  505 ;  Bean  v.  Dickerson,  2 
Humph.  126.  See  also  Masury  v.  Southworth,  9  Ohio  St.  840.  A  covenant  by 
lessor  to  pay  for  improvements  to  be  put  on  premises  by  lessee  is  a  personal  one, 
and  does  not  run  with  the  land  to  bind  assignee  of  reversion.  Smitli,  Land.  & 
Ten.  290,  291 ;  2  Piatt,  Leases,  406  j  Tallman  v.  Coffin,  4  Comst.  134. 


502  LAW   OP    REAL   PROPERTY.  [BOOK    I. 

a  thing  not  in  esse  at  the  time,  yet,  being  specifically  named, 
it  would  bind  him,  if  it  affected  the  nature,  quality,  or  value 
of  the  thing  demised  independently  of  collateral  circumstances, 
or  if  it  affected  the  mode  of  enjoying  it."  ^  Nor  would  it  be 
necessary  to  make  use  of  the  word  "  assigns,"  if  the  intent  to 
bind  them  is  inferrible  from  the  language  of  the  lease.  In  the 
case  cited  below,  the  court  say,  "  We  think  the  real  question 
must  be,  the  covenant  being  one  which  may  be  annexed  to 
the  estate,  and  run  with  the  land,  whether  such  was  the  in- 
tention of  the  parties  as  expressed  in  the  deed."  On  the 
other  hand,  if  the  covenant  be  not  of  a  nature  that  the  law 
permits  it  to  be  attached  to  the  estate,  it  cannot  become  so  by 
the  agreement  of  the  parties.^  Whether  the  covenant  to  sur- 
render at  the  end  of  the  term  runs  with  the  estate,  so  as  to 
bind  an  assignee,  unless  expressly  named  in  the  lease,  is 
treated  by  the  court  of  Massachusetts  as  an  undecided  ques- 
tion, although  it  was  held  by  Parke,  B.,  that  it  did  not  run 
with  the  land.3 

12.  Where  a  covenant  which  runs  with  the  land  is  divisible 
in  its  nature,  if  the  entire  interest  in  different  parts  or  parcels 
of  the  land  passes  by  assignment  to  separate  and  distinct  in- 
dividuals, the  covenant  will  attach  upon  each  parcel  j?/-o  tanto.^ 
In  such  case  the  assignee  of  each  joart  would  be  answerable 
for  his  proportion  of  any  charge  upon  the  land  which  is  a 
common  burden,  and  would  be  exclusively  liable  for  the 
breach  of  any  covenant  which  related  to  that  part  alone.^ 

13.  Though  the  foregoing  proposition  has  already  been  sub- 
stantially stated,  it  is  distinctly  repeated  in  order  to  connect  it 
with  another  circumstance  in  the  liability  of  an  assignee  ;  and 
that  is,  inasmuch  as  such  liability  grows  out  of  a  privity  of 
estate,  it  continues  only  so  long  as  such  privity  exists.^  Upon 
his  ceasing  to  hold  as  assignee,  his  liability  for  future  breaches 
is  at  an  end.     And  he  may  do  this  by  assigning  even  to  a  beg- 

1  Congleton  v.  Pattison,  10  East,  138. 

2  Masury  v.  Southworth,  9  Ohio  St.  340. 

3  Sargent  v.  Smith,  12  Gray,  428 ;  Doe  v.  Seaton,  2  C.  M.  &  R.  730. 

*  Van  Rensselaer  v.  Bradley,  2  Denio,  135;  Van  Rensselaer  v.  Jones,  2  Barb. 
643 ;  Gamon  v.  Vernon,  2  Lev.  231 ;  Astor  v.  Miller,  2  Paige,  Ch.  78 ;  Van  Horn 
V.  Grain,  1  Paige,  Ch.  455. 

6  Id. ;  Piatt,  Gov.  495.  6  Grundin  v.  Carter,  99  Mass.  16. 


CH.  X.  §  4.]  ESTATES    FOR   YEARS.  503 

gar.  And  an  assignee  will  not  be  liable  for  any  breaches  com- 
mitted before  he  became  such.^  Nur  does  the  liability  of  an 
assignee,  during  the  time  that  the  term  remains  vested  in  him, 
depend  upon  his  ever  having  actuallj^  entered  into  possession 
of  the  premises,  unless,  perhaps,  the  assignment  be  by  way  of 
a  mortgage,  in  respect  to  M'hich  different  opinions  have  pre- 
vailed.2  Different  courts  have  held  differently  upon  the  point 
whether  the  assignee  of  a  lease  is  liable  for  rent  before  he 
shall  have  entered  under  his  assignment.  In  Illinois,  such 
assignee  is  liable  before  entry  made.  In  New  York,  the  con- 
verse is  held  ;  while  in  Massachusetts,  although  a  lease  under 
seal  may  be  effectually  assigned  by  a  writing  not  under  seal, 
if  the  assignee  enter  upon  the  estate,  an  assignment  to  be 
effectual  in  rendering  the  assignee  liable  for  the  rent  must 
either  be  made  by  deed,  or  completed  by  an  entry  or  actual 
change  of  possession  on  the  part  of  the  assignee.^  An  exec- 
utor of  a  lessee,  though  an  assignee  in  law  of  the  lease,  does 
not  become  liable  as  such  de  bonis  propriis^  unless  he  actually 
enters  into  tlie  demised  premises.*  He  continues  to 
be  liable  for  breaches  committed  while  he  *  holds  as  [*332j 
assignee,  though  he  should  have  subsequently  assigned 
the  lease. ^  Nor  would  he  escape  the  liability  of  assignee  by 
any  thing  short  of  an  assignment,  and  an  actual  transmission 
of  possession.     If  he  retain  possession   of  any   part   of  the 

>  Hintze  v.  Thomas,  7  Md.  346 ;  Walton  v.  Cronly,  14  Wend.  62;  Piatt,  Cov. 
490 ;  Id.  494  ;  Paul  v.  Nurse,  8  B.  &  C.  486  ;  Wolveridge  v.  Stewart,  1  Cronipt. 
&  M.  644 ;  Harley  v.  King,  2  Crompt.,  M.  &  R.  22,  Am.  ed.  note ;  Smith,  Land. 
&  Ten.  294,  and  note  ;  Taylor  v.  Shum,  1  Bos.  &  P.  21 ;  Pitcher  v.  Tovey,  4 
Mod.  76 ;  Patten  v.  Deshon,  1  Gray,  329 ;  Lekeux  v.  Nash,  2  Strange,  1221 ; 
Odell  V.  Wake,  3  Camp.  394 ;  Cuthbertson  v.  Irving,  4  H.  &  Norm.  742  ;  Bagley 
V.  Freeman,  1  Hilton,  196;  Kain  v.  Hoxie,  2  Hilton,  311 ;  Johnson  v.  Sherman, 
15  Cal.  287  ;  Day  v.  Svvackhamer,  2  Hilton,  4  ;  Journeay  v.  Brackley,  1  Hilton, 
447,  452 ;  Quackenboss  v.  Clarke,  12  Wend.  557  ;  2  Piatt,  Leases,  416 ;  anle, 
p.  *326  ;  Armstrong  v.  Wheeler,  9  Cowen,  89. 

2  Wms.  Real  Prop.  331;  Smith  v.  Brinker,  17  Mo.  148;  Bagley  v.  Freeman, 
1  Hilton,  196 ;  Journeay  v.  Brackley,  1  Hilton,  447,  452  ;  Felch  v.  Taylor,  13 
Pick.  139. 

3  Babcock  v.  Scoville,  56  111.  466;  Damainville  v.  Mann,  32  N.  Y.  197;  San- 
ders V.  Partridge,  108  Mass.  556. 

4  WoUaston  v.  Hakewell,  3  M.  &  G.  320;  Taylor,  L.  &  T.  §  451. 

6  Harley  v.  King,  2  Crompt.  M.  &  R.  18 ;  Quackenboss  v.  Clarke,  12  Wend. 
555-557 ;  Journeay  v.  Brackley,  1  Hilton,  452. 


504  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

premises  until  the  rent  falls  due,  either  by  himself  or  his  ten- 
ant, he  is  liable  for  the  same.^  But  to  render  an  assignee 
liable  as  such,  he  must  have,  by  virtue  of  the  assignment, 
actual  possession  or  an  immediate  right  to  possession  of  the 
premises.^  So  the  benefit  of  the  covenants  by  the  lessor  with 
the  lessee  passes  to  the  assignee  of  the  latter  by  reason  of 
such  privity  of  estate.^ 

14.  From  the  twofold  character  of  a  lessee's  liability,  first, 
arising  from  privity  of  estate,  secondly,  from  his  express  cove- 
nants, the  effect  of  an  assignment  of  his  lease  upon  him  is  that 
he  ceases  to  be  liable  upon  the  implied  covenants  in  his  leasC* 
And  if  the  lessor  accept  rent  from  his  assignee,  the  lessee  ceases 
to  be  liable  in  debt  for  the  rent,  for  that  liability  results  from 
a  privity  of  estate.^  But  if  the  lessor  refuses  to  accept  the 
assignee  as  his  tenant,  he  may  continue  to  sue  his  lessee  in  debt 
for  the  rent.^  And  the  lessee  remains  still  liable  upon  his  ex- 
press covenants  in  the  same  manner  as  if  no  assignment  had 
been  made,  the  original  privity  of  contract  still  subsisting.'^ 
And  this,  though  the  lessor  assent  in  writing  to  the  assign- 
ment, and  though  he  has  actually  received  rent  of  the  assignee,^ 

1  Negley  v.  Morgan,  46  Penn.  St.  284 ;  Sanders  v.  Partridge,  108  Mass.  556. 

2  Hannen  v.  Ewalt,  18  Penn.  St.  9 ;  Thomas  v.  Connell,  5  Penn.  St.  13;  Wick- 
ersham  v.  Irwin,  14  Penn.  St.  108. 

3  Wnis.  Real  Prop.  331. 

4  Kunckle  v.  Wynick,  1  Dall.  305 ;  Harley  v.  King,  2  Crompt.,  M.  &  R.  18,  Am. 
ed.  note  ;  Kimpton  v.  Walker,  9  Vt.  191 ;  Blair  v.  Rankin,  11  Mo.  440;  Thursby 
V.  Plant,  1  Saund.  241  b;  Waldo  v.  Hall,  14  Mass.  486;  Swan  v.  Stransham, 
Dyer,  257. 

5  Fletcher  v.  M'Farlane,  12  Mass.  43  ;  Auriol  v.  Mills,  4  T.  R.  98 ;  Wall  v. 
Hinds,  4  Gray,  256 ;  Pine  v.  Leicester,  Hobart,  37  a,  Wms.  notes ;  Thursby  v. 
Plant,  1  Saund.  240  ;  Com.  Land.  &  Ten.  275. 

e  Auriol  v.  Mills,  4  T.  R.  94;  Thursby  v.  Plant,  1  Saund.  241  b,  note;  Coghil 
V.  Freelove,  3  Mod.  825  ;  Hobart,  37  a,  note. 

~'  Wall  I'.  Hinds,  4  Gray,  256  ;  Smith,  Land.  &  Ten.  293  ;  Thursby  v.  Plant,  1 
Saund.  240 ;  Id.  241  a,  note  ;  Ghegan  o.  Young,  23  Penn.  St.  18 ;  Walton  v.  Cron- 
ly,  14  Wend.  63;  Williams  v.  Burrill,  1  C.  B.  433;  Dewey  v.  Dupuy,  2  W.  & 
S.  553;  Howland  v.  Coffin,  12  Pick.  125;  correcting  and  overruling  the  doctrine 
in  Walker's  case,  3  Rep.  24,  that,  after  accepting  rent  of  the  assignee  of  lessee, 
a  lessor  cannot  sustain  an  action  against  the  lessee.  See  also  Journeay  v.  Brack- 
ley,  1  Hilton,  451 ;  2  Piatt,  Leases,  352. 

8  Bailey  v.  Wells,  8  Wis.  141  ;  Post  v.  Jackson,  17  Johns!  239;  Quackenboss 
V.  Clarke,  12  Wend.  556;  Damb  v.  Hoffman,  3  E.D.. Smith,  361;  ante,  *326. 


CH.  X.  §  4.]  ESTATES    FOR   YEAES.  505 

unless  the  lessor  shall  have  accepted  a  surrender  from  the  les- 
see and  released  hmi.^ 

15.  Another  incident  may  be  remarked  in  respect  to  the 
consequences  of  an  assignment  when  made  to  several  persons, 
that  if  an  act  of  forfeiture  is  committed  hy  a  breach' of  cove- 
nant, it  is  immaterial,  so  far  as  its  effect  in  defeating  the 
estate  is  concerned,  whether  it  be  clone  by  one  or  all  of  the 
assignees.^ 

16.  It  is  competent  and  usual  for  the  parties  to  an.  indent- 
ure of  lease,  instead  of  leaving  their  rights  and  duties  in 
respect  to  the  leased  premises  to  be  determined  by  the  rules 
of  law,  however  well  defined,  to  insert  express  limitations  or 
covenants  affecting  these  common-law  rights,  especially  in  re- 
gard to  the  mode  of  using  the  premises,  and  the  consequences 
of  fault  or  accident  connected  with  such  use.  Though  these 
are  more  fully  treated  of  hereafter,^  it  may  be  remarked,  that 
if  no  such  limitation  is  inserted,  the  lessee  will  be  bound  by  his 
covenant  to  pay  rent,  although  the  premises  be  destroyed  or 
rendered  untenantable  from  other  causes.^  The  court  cannot 
interpolate  what  the  contract,  as  written,  does  not  contain. 
Thus,  in  the  lease  of  a  water-power,  provision  was  made  for 
abating  the  rent,  in  case  of  loss  of  power  in  proportion  to  the 
deficiency  of  the  power  :  the  court  could  adopt  no  other  remedy 
for  the  party  injured  by  such  loss.^  So  where  lessee  cove- 
nanted to  pay  rent  during  the  term,  but  the  lessor  had  agreed, 
orally,  that  if  the  building  were  burned  the  rent  should  cease, 
the  court  excluded  this  evidence,  as  it  expressly  contradicted 
what  the  tenant  had  covenanted  to  do.^  Though  the  common 
law  of  New  York  coincides  with  the  doctrine  above  stated, 
rendering  the  lessee  liable  for  rent  though  the  premises  ma,y 
have  been  destroyed ;  by  a  statute  of  that  State,  where  the 
premises  have  become  untenantable  by  the  force  of  the 
elements,  without  the  fault  of  the  tenant,  he  is  not  bound  to 
repair  them,  and  is  at  liberty  to  surrender  and  abandon  them.'^ 

1  Frank  v.  Maguire,  42  Penn.  St.  82. 

2  Clarke  v.  Cumraings,  5  Barb.  339.  ^  Post,  sect.  6. 

*  Fowler  v.  Bott,  6  Mass.  03 ;  Bigelovv  v.  Collamore,  5  Cush.  226 ;  Beach  v. 
Farish,  4  Cal.  339 ;  Leavitt  v.  Fletcher,  10  Allen,  121. 

6  Sheets  v.  Selden,  7  Wall.  424.  6  Martin  v.  Berens,  67  Fenn.  St.  462, 

T  Graves  v.  Berden,  2G  New  York,  601 ;  Tayl.  L.  &  T.  §  520. 


506  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

But  neither  the  lessor,  nor  the  lessee,  if  he  uses  the  premises 
in  a  husbandlike  manner,  will  be  bound  to  rebuild  or  repair 
the  premises,  if  destroyed  or  damaged  without  his  fault,  in 
the  absence  of  an  express  covenant  to  that  effect  in  the  lease  ;  ^ 
though  it  is  competent  for  the  lessor  or  the  lessee  to  cove- 
nant to  repair  or  rebuild,  either  absolutely  or  to  a  limited 
extent.^  If  the  lessee  covenants  to  repair  and  restore  the  prem- 
ises or  to  surrender  them  in  good  condition,  or  in  terms  to  that 
effect,  he  will  be  bound  to  make  good  his  covenant,  and  re- 
build the  premises  if  destroyed,  and  in  the  mean  time  to  pay 
his  rent,  though  the  loss  may  have  happened  without  his 
fault.^  Even  where  a  thing  becomes  impossible  of  perform- 
ance by  the  act  of  a  third  person,  or  the  act  of  God,  its  im- 
possibility affords  no  excuse  for  its  non-performance.  It  is 
the  party's  folly  that  led  him  to  make  such  a  bargain  without 
providing  against  the  possible  contingency.  So  that,  if  the 
lessee  covenant  to  repair  a  house,  he  is  bound  to  do  so,  though 
it  be  burned  by  lightnhig  or  destroyed  by  public  enemies.^ 
From  using  blank  forms  in  making  leases,  it  sometimes  hap- 
pens that  printed  and  written  clauses  in  the  same  lease  are 
inconsistent  with  each  other ;  and  the  rule  in  such  case  is,  to  re- 
gard the  written  clause  as  the  contract  of  the  parties,  because 
the  printed  may  have  been  left  standing  by  inadvertence.^ 
But  where  there  is  an  express  covenant  to  repair,  the  covenanter 
is  bound  to  make  good  any  injury  which  human  power  can 
remedy,  even  if  caused  by  storm,  flood,  fire,  inevitable  acci- 
dent, or  the  act  of  a  stranger,  by  the  wind,  or  by  lightning. 
Thus,  where  the  lessor  covenanted  to  repair  the  outside  of 

1  Post  V.  Vetter,  2  E.  D.  Smith,  248  ;  Welles  v.  Castles,  3  Gray,  323 ;  2  Piatt, 
Leases,  182  ;  Horsefall  v.  Mather,  Holt,  N.  P.  7  ;  Leavitt  v.  Fletcher,  10  Allen, 
121 ;  Elliott  V.  Aiken,  45  N.  H.  36. 

2  Walton  V.  Waterhouse,  2  Saund.  422,  n.  2;  Phillips  v.  Stevens,  16  Mass. 
238. 

3  2  Saund.  422,  note  2 ;  Abby  v.  Billups,  35  Miss.  618  ;  Bigelow  v.  CoUamore, 
sup.;  Shep.  Touch.  173.  In  the  case  of  Warner  v.  Hitchins,  Sill,  J.,  in  an  elab- 
orate opinion,  maintained  that  a  covenant  to  surrender  the  premises  in  the  same 
condition  they  were  in  at  the  time  of  making  the  lease,  natural  wear  and  tear 
excepted,  did  not  impose  an  obligation  to  rebuild  if  they  were  destroyed  by  fire. 
5  Barb.  666.    See  Gibson  v.  Eller,  13  Ind.  128. 

*  Clifford  V.  Watts,  L.  R.  5  C.  B.  586. 
6  Ball  V.  Wyeth,  8  Allen,  278. 


CH.  X.  §  5.]  ESTATES   FOR   YEARS.  607 

the  building  let,  and  the  lessee  to  repair  the  inside,  and  the 
weight  of  snow  crushed  the  roof,  it  was  held  that  the  lessor 
was  bound  to  repair  this,  so  that  the  lessee  could  do  the  re- 
pairs upon  the  inside. ^  If,  by  the  terms  of  the  lease,  the 
covenant  to  pay  rent  is  partially  or  wholly  suspended,  when 
the  premises  are  partially  or  wholly  destroyed  by  unavoidable 
casualty,  or  words  of  similar  import,  this  does  not  apply  to  a 
gradual  decay  of  the  premises,  but  is  limited  to  damage  aris- 
ing from  uncontrollable  force  and  accident. 


*  SECTION  V.  [*333] 

OF   ASSIGNMENT   AND    SUB-TENANCY. 

1.  Assignment  of  lease  must  be  by  writing,  &c. 

2.  May  be  done  by  a  general  deed  of  grant. 

3.  Sale  of  the  parties'  interest  on  execution. 

4.  What  an  assignment,  and  what  an  underlease. 

5.  No  privity  between  lessor  and  sub-lessee. 

6.  Lessee  may  convey  and  carve  up  his  estate. 

7.  Lessor  may  assign  his  reversion. 

8.  Reversion  carries  rent,  in  part  or  in  whole. 

9.  Of  apportionment  of  rent. 

10.  Reversion  and  rent  may  be  separately  conveyed. 

11.  Assignee  of  rent  sues  in  his  own  name. 

12.  Descent  of  rent  to  several  heirs. 

13.  Of  forms  of  action  by  and  against  assfgnees. 

14.  Necessity  of  notice  of  assignment  made. 

15.  When  mortgagee  liable  as  assignee. 

15  a.     Effect  of  assignment  by  an  insolvent  lessee. 

16.  Assignee  may  not  deny  validity  of  assignment. 

1.  In  the  first  place,  it  may  be  stated  as  a  general  if  not  a 
universal  proposition,  that  a  lease  is  assignable  unless  its 
assignability  is  restricted  by  some  covenant  or  condition  there- 
in to  that  effect.^     So  the  lessee  may  underlet  the  premises 

1  Leavitt  v.  Fletcher,  10  Allen,  121 ;  Flynn  v.  Trask,  11  Allen,  555.  By  Stat. 
1860,  c.  345,  in  New  York,  if  hired  premises  are  destroyed,  or  so  injured  as  to  be 
untenantable,  the  tenant  is  relieved  from  paying  rent.  But  this  does  not  extend 
to  wear  and  decay.  Suydam  v.  Jackson,  54  N.  Y.  450.  But  the  tenant,  to  avail 
himself  of  this  statute,  must  entirely  surrender  the  premises.  Johnson  v. 
Oppenheim,  55  N.  Y.  280. 

2  Robinson  v.  Perry,  21  Ga.  183. 


508  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

unless  restrained  in  like  manner.^  In  considering  the  form 
of  making  an  assignment  of  a  leasehold  interest,  and  the  rights 
arising  under  a  written  lease,  by  the  acts  of  the  parties,  and 
w^hat  will  operate  in  law  as  such  assignment,  it  maybe  stated 
that  the  Statute  of  Frauds  requires  it  to  be  done  by  deed  or 
note  in  writing,  signed  by  the  party  assigning  the  same,  or  his 
agents  thereunto  lawfully  authorized  in  writing.^  Statute  29 
Car.  II.  c.  3,  §  3.  And  now  by  the  statute  of  Victoria  it  can 
only  be  done  by  deed.^  The  statute  32  Henry  VIII.  c.  34,  as 
to  assignment  of  covenants,  &c.,  in  leases,  applies  only  to  cases 
of  demise  by  deed.  Consequently,  the  assignee  of  a  reversion 
cannot  sue  in  assumpsit  on  the  contract  made  by  the  assignor. 
And  the  very  definition  of  a  covenant  implies  that  the  agree- 
ment constituting  it  should  be  under  seal.* 

2.  It  ma}^  be  stated,  in  general  terms,  that  the  grant  by  a 
lessee  of  his  entire  estate  will  be  an  assignment  of  the  lease, 
whether  done  in  the  form  of  a  lease,  or  by  an  instrument  in 
terms  an  assignment.^  So  a  conveyance  in  fee  by  a  lessee  for 
years  in  the  form  of  a  deed  will  operate  as  an  assignment,  and 
hold  his  grantee  as  tenant  of  the  first  lessor ;  nor  could  the 
grantee  set  up  his  possession  as  adverse  to  that  of  such  lessor.^ 
If  a  lessor  during  the  term  mortgage  the  premises,  it  may 
operate  as  an  assignment  of  the  reversion  pro  tanto,  and  carry 
with  it  the  rent  as  incident  to  it ;  and  all  that  would  be  neces- 
sary in  such  a  case  for  the  mortgagee  to  avail  himself  of  the 
rent  would  be  to  notify  the  tenant  to  pay  it  to  him.  But  if 
the  mortgage  of  the  premises  be  antecedent  to  the  lease,  it  is 
not  enough  for  the  mortgagee,  in  order  to  claim  the  rent,  to 
give  the  tenant  notice  to  pay  it.  He  must  gain  possession  of 
the  mortgaged  premises  before  he  can  compel  the  tenant  to 


1  King  V.  Aldborough,  1  East,  597 ;  Taylor,  Land.  &  Ten.  22  ;  Crommelin  v. 
Thiess,  31  Ala.  421.  But  in  Georgia,  a  tenant  is  prohibited  by  statute  from  sub- 
letting premises  without  consent  of  his  landlord.  McBurney  v.  Mclntire,  38 
Ga.  262. 

2  Bedford  v.  Terhune,  30  N.  Y.  459.  »  Wms.  Real  Prop.  133. 
*  Standen  v.  Chrismas,  10  Q.  B.  135 ;  Piatt,  Gov.  3. 

5  2  Prest.  Conv.  124.  See  Palmer  v.  Edwards,  Doug.  187,  n. ;  Poultney  v. 
Holmes,  1  Strange,  405;  Lynde  v.  Hough,  27  Barb.  415;  Boardraan  v.  Wilson, 
L.  R.  4  C.  B.  57 ;  Sanders  v.  Partridge,  108  Mass.  558. 

6  Sands  v.  Hughes,  53  N.  Y.  293. 


CH.  X.  §  5.]  ESTATES    FOR    YEARS.  509 

pay  him  the  rent.^  And  the  reason  of  this  is,  that  the  lessee 
of  the  mortgagor  has  his  rights  as  assignee,  and  the  mortgagor 
would  not  himself  be  liable  to  the  mortgagee  for  rent  until  he 
should  have  taken  possession  of  the  premises  under  his  mort- 
gage. But  while  this  is  true^  it  is  not  true  that  by  accepting 
rent  the  mortgagee  affirms  the  lease  for  the  whole  term.  It 
would  only  create  a  tenancy  from  year  to  year  at  the  farthest.^ 
But  an  assignment  by  a  lessor  in  writing  of  a  lease  which  is 
under  seal  is  not  a  transfer  of  the  legal  title  so  as  to  enable 
the  assignee  to  sue  for  the  rent  reserved  therein.  The  assign- 
ment to  be  effectual  must  be  under  seal.^  While  this  is  true 
as  a  general  proposition,  it  was  held  in  one  case  that  an  assign- 
ment by  a  lessee,  in  writing,  of  a  lease  under  seal,  would  so 
far  be  effectual,  that,  if  followed  by  an  entry  on  the  part  of 
the  assignee  upon  the  leased  premises,  he  would  be  liaBle  as 
assignee  for  rent  accruing  due  during  his  tenancy  by  reason 
of  the  privity  of  estate  thereby  created  between  him  and  the 
reversioner.^ 

3.  So  if  the  estate  of  the  lessor  as  owner  in  fee  is  sold  on 
execution  before  the  rent  is  due,  it  would  carry  the  right  to 
recover  the  rent  to  the  purchaser.^  In  an  action  by  a  lessor 
against  one  in  possession  of  leased  premises  to  recover  rent, 
the  latter  will  be  presumed  to  be  the  assignee  of  the  lessee 
unless  the  contrary  is  shown. ^  And  a  surrender  made  by  the 
lessee  to  the  lessor  and  accepted  by  hira,  during  the  period  of 
an  occupancy  by  one  in  possession,  will  be  conclusive  evidence 
that  the  lessee  and  not  the  occupant  is  the  one  who  holds 
under  the  lessor.  By  this,  as  well  as  other  evidence,  the  pre- 
sumption of  an  assignment  may  be  rebutted,  as  well  as  that 
of  such  a  privity  of  estate  as  makes  a  tenant  responsible  to 
the  lessor  for  rent.'^ 

1  Kimball  v.  Lockwootl,  6  R.  I.  138.  2  Gartside  v.  Outley,  58  El.  215. 

8  Bridgham  v.  Tileston,  5  Allen,  371 ;  Brewer  v.  Dyer,  7  Cush.  338 ;  Wood 
V.  Partridge,  11  Mass.  491. 

*  Siinilers  v.  Partridge,  108  Mass.  556. 

5  Shelton  v.  Codman,  3  Cush.  318;  Hart  v.  Israel,  2  P.  A.  Browne,  22  ;  Bank 
of  Pennsylvania  v.  Wise,  3  Watts,  394 ;  Scheerer  v.  Stanley,  2  Rawle,  276. 

s  Cross  V.  Upson,  17  Wis.  618  ;  Mariner  v.  Crocker,  18  Wis.  254  ;  Bedford  v. 
Terhune,  30  N.  Y.  457,  459. 

1  Durando  v.  Wyman,  2  Sandf .  597 ;  Quackenboss  v.  Clarke,  12  Wend.  557 ; 
Kain  v.  Hoxie,  2  Hilton,  311. 


510  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

4.  Questions  have  sometimes  arisen,  whether  a  certain  act 
of  a  lessee  is,  in  law,  an  assignment  or  an  underletting.  And 
this  becomes  important  when  the  effect  of  the  one  or  the  other 
is  considered.  The  determination  of  the  question  does  not 
depend  upon  the  form  of  the  instrument  alone,  but  upon 
whether  the  lessee  has  thereby  parted  with  his  entire  interest 

in  the  term  as  a  term.  If  he  has  aliened  his  entire 
[*334]  interest,  it  *  is  an  assignment.     If  it  is  for  a  period 

wliich  is  to  expire  before  the  expiration  of  the  original 
lease,  it  is  a  subletting.  In  the  one  case  he  has  a  reversion 
left,  in  the  other  he  has  none.  And  the  retaining  the  small- 
est reversionary  interest  gives  to  the  instrument  the  mere 
effect  of  an  underlease.^  Giving  it,  however,  the  form 
of  an  underletting,  does  not  change  its  character.  If  it 
be  for  the  whole  term,  it  will  be  an  assignment  with  all  its 
consequences.^  So  if  a  lessee  underlet  a  portion  of  the  leased 
premises  for  a  term  as  long  or  longer  than  his  own,  such  un- 
derlessee  becomes  thereby  assignee,  and  liable,  proportionably, 
for  the  performance  of  the  covenants  which  relate  to  the  es- 
tate. Nor  would  it  make  any  difference  in  this  respect, 
though  the  premises  be  underlet  for  a  larger  rent  than  that 
reserved  in  the  original  lease.  The  undertenant  would  be 
liable  to  his  lessor,  under  his  lease,  for  such  excess.^  But 
where  a  lessee  for  the  term  of  five  years  let  them  for  two,  with 
a  right  in  the  lessee  to  hold  for  the  entire  term,  by  giving  no- 
tice, with  a  right  on  the  part  of  the  sublessor  to  re-enter  for 
non-payment  of  rent,  and  an  obligation  on  the  lessee's  part  to 
surrender  the  premises  to  his  lessor  at  the  expiration  of  the 
term,  it  was  held  to  be  an  underletting,  and  not  an  assignment.* 

1  Burton,  Eeal  Prop.  §  889;  2  Prest.  Conv.  124;  Parmenter  t;.  Webber,  8 
Taunt.  593  ;  Pollock  v.  Stacy,  9  Q.  B.  1033,  where  the  form  was  an  underletting  ; 
Patten  v.  Deshon,  1  Gray,  325,  where  the  underletting  was  of  a  part  of  the  prem- 
ises for  the  entire  term  ;  1  Piatt,  Leases,  102  ;  2  Id.  420 ;  Earl  of  Derby  v.  Tay- 
lor, 1  East,  502  ;  Bacon,  Abr.  Lease,  L  3 ;  Bagley  v.  Freeman,  1  Hilton,  196, 
198;  Kain  v.  Hoxie,  2  Hilton,  311.  That  taking  in  a  lodger  is  not  an  underlet- 
ting or  assignment,  see  ante,  p  *321. 

2  Sanders  v.  Partridge,  108  Mass.  558 ;  Beardman  v.  Wilson,  L.  R.  4  C.  B.  67 ; 
WoUaston  v.  Hakewell,  3  M.  &  G.  323 ;  Taylor,  L.  &  T.  §  16  and  note. 

8  WoUaston  v.  Hakewell,  sup. ;  Taylor,  L.  &.  T.  §  16  and  note. 
4  CoUins  V.  Hasbrouck,  56  N.  Y.  157 ;  citing  Bedford  v.  Terhune,  30  N.  Y 
463. 


CH.  X.  §  5.]  ESTATES   FOR   YEARS.  511 

Thus,  where  the  lessee  demised  to  another  the  leased  premises 
for  the  balance  of  the  term,  but  reserved  a  delivery  of  jpos- 
session  on  the  last  day  of  the  term,  and  a  right  to  possession 
if  the  buildings  were  leased  during  the  term,  it  was  held  to 
be  an  underletting,  and  not  an  assignment.^  So  where  the 
assignee  of  a  lease  demised  his  entire  interest,  reserving  a  rent 
larger  than  that  reserved  in  the  original  lease,  with  a  right  of 
entry  for  non-payment  thereof,  it  was  held  to  be  an  under- 
letting, and  not  an  assignment,^  though  it  is  laid  down  by 
Preston  that  a  right  of  entry  or  a  reservation  of  rent  will  not 
change  the  nature  of  the  estate,  but  that,  to  make  it  an  under- 
lease, a  reversion  must  be  retained  by  the  former  owner,  and 
that  the  underlease  must  be  for  a  period  less  in  point  of  time 
than  the  term  or  estate  of  the  lessor,  and  a  day,  an  hour,  or  a 
minute,  will  be  sufficient.^  Though  it  would  be  an  under- 
letting unless  the  lessee's  whole  estate  and  interest  passes,  if  it 
be  the  lessee's  whole  estate  and  interest  in  apart  of  the  leased 
premises,  it  will,  as  to  that  part,  be  an  assignment,  and  the 
tenant  will  be  liable,  as  assignee,  for  a  proportionate  part  of 
the  rent  reserved  in  the  original  lease.*  A  judicial  sale  of  the 
interest  of  the  lessee  creates  in  the  purchaser  the  obligation 
of  an  assignee  to  pay  the  rent  subsequently  accruing.^  It  is 
held  to  be  sufficient  to  constitute  a  reversionary  interest  that 
the  estate  may  return  to  the  lessor.^  The  cases  upon  the 
point,  whether  a  subletting  by  a  lessee  of  his  entire  term 
amounts  to  an  assignment,  or  creates  a  new  relation  of  land- 
lord and  tenant,  with  a  right  to  distrain  for  rent  and  the  like 
between  him  and  the  undertenant,  are  numerous,  and  it  is 
not  proposed  to  examine  them  any  further  than  as  it  affects 
the    question,  whether  such  subletting,  in  terms,  creates  a 

1  Post  V.  Kearney,  2  Comst.  394 ;  Linden  v.  Hepburn,  3  Sandf.  668. 

'^  Kearney  v.  Post,  1  Sandf.  105. 

3  2  Prest.  Conv.  124,  125,  cites  Palmer  v.  Edwards,  Doug.  187,  n. ;  Doe  v. 
Bateman,  2  B.  &  Aid.  168  ;  Davis  v.  Morris,  36  N.  Y.  676,  where  the  underlet- 
ting was  for  the  entire  unexpired  term,  except  the  last  day. 

*  2  Piatt,  Leases,  421 ;  Pingrey  v.  Watkins,  15  Vt.  479,  488.  See  Holford  v. 
Hatch,  Doug.  174. 

5  D'Aquin  v.  Armant,  14  La.  An.  217. 

6  See  The  King  v.  Wilson,  6  Mann.  &  R.  167,  n.,  where  the  writer  is  speaking 
of  what  would  be  a  sufficient  reversion  to  authorize  lessor  to  distrain  for  rent. 
But  see  Langford  v.  Selmes,  3  K.  &  John.  226,  229. 


512  LAW  OF  REAL  PROPERTY.  [bOOK  L 

privit}'  of  estate  between  the  sublessee  and  the  original  lessor. 

And  here  unfortunately  the  law  seems  to  be  unsettled, 
[*33o]   no   case   having   been   found   expressly   in   *  point.^ 

Thus,  in  the  case  of  Linden  v.  Hepburn,^  above  cited, 
the  lessee  let  to  an  undertenant  the  residue  of  his  original 
term,  reserving  rent  to  himself;  though  the  court  held  it  to 
be  subletting,  and  not  an  assignment,  so  far  as  the  first  lessee 
and  his  subtenant  were  concerned,  they  waive  the  question, 
what  would  be  the  effect  of  this  second  lease  as  between  the 
subtenant  and  the  first  lessor.  In  the  case  above  cited  of 
Doe  V.  Bateman,^  the  lessee  demised  to  the  tenant  for  a  term 
coextensive  with  his  own  term,  reserving  rent  and  subject  to 
certain  conditions,  and  it  was  held  to  be  an  assignment,  and 
that  the  first  lessee  had  no  reversion.  The  language  of  Ba- 
con is,  "  When  the  whole  term  is  made  over  by  the  lessee, 
although,  in  the  deed  by  which  that  is  done,  the  rent  and 
power  of  entry  for  non-payment  are  reserved  to  him  and  not 
to  the  original  lessee  (lessor),  this  is  an  assignment  and  not 
an  underlease,  and  therefore  the  original  lessor,  or  his  assignee 
of  the  reversion,  may  sue  or  be  sued  on  the  respective  cove- 
nants in  the  original  lease,  and  this  although  new  covenants 
are  introduced  in  assignment."  The  case  referred  to  by  the 
writer  is  the  one  above  cited  from  Douglas.*  The  court  of 
Pennsylvania,  quoting  this  language,  add,  "  This  doctrine 
equally  holds  good,  whether  the  original  lease  is  in  writing  or 
by  parol,"  showing  a  recognition  of  the  principle  as  law.^ 
But  there  is  a  very  elaborate  note  to  The  King  v.  Wilson,^ 
incidentally  referring  to  this  question,  which  seems  to  sustain 
that  whether  a  subletting  for  the  entire  terra  shall  be  an  ab- 
solute assignment,  carrying  with  it,  as  to  third  parties,  the 
consequences  of  an  assignment,  depends  upon  the  intention 
of  the  parties  to  such  second  lease,  gathered,  of  course,  from 

1  In  Holford  v.  Hatch,  the  court  held  that  lessor  could  not  sue  sublessee  on 
covenant  to  pay  rent,  unless  he  is  assignee  of  the  whole  term.     Doug.  187. 

2  Linden  f.  Hepburn,  3  Sandf.  670. 

8  Doe  V.  Bateman,  2  B.  &  Aid.  168.      See  also  Smiley  v.  Van  "Winkle,  6  CaL 
605. 

<  Bacon,  Abr.  Lease,  I.  3  ;  Palmer  v.  Edwards,  Doug.  187,  n. 

&  Lloyd  V.  Cozens,  2  Ashm.  138. 

6  The  King  v.  Wilson,  5  Mann.  &  R.  167,  n.     See  joos<  514,  515,  cont. 


CH.  X.  §  5.]  ESTATES   FOR   YEARS.  513 

the  instrument,  construed  by  the  ordinary  rules  of  law.  "  But 
where/'  says  the  writer,  "a  termor,  whether  lessee  or 
assignee,  indicates  no  intention  to  part  with  the  term,  and 
thereby  determine  the  privity  of  estate  between  him- 
self and  the  *  lessor,  there  appears  to  be  neither  [*386] 
principle  nor  authority  to  preclude  such  termor  from 
making  an  underlease  for  a  period  commensurate  in  point  of 
computation  with  the  original  term." 

The  following  cases  from  the  courts  of  New  York  bear 
upon  the  doctrine  last  above  stated.  In  one  there  was  a  let- 
ting for  a  term  of  years,  with  a  restriction  as  to  underletting  : 
the  defendants  went  into  possession  and  paid  several  quarters' 
rent,  though  they  were  not  the  lessees,  and  it  did  not  appear 
what  the  agreement  was  between  them  and  the  lessee.  The 
lessee  having  become  bankrupt,  the  lessor  sued  them  as  as- 
signees for  the  rent  in  arrear  at  the  expiration  of  the  term, 
the}''  being  then  in  possession.  The  court  say,  "  The  defend- 
ants held  for  the  whole  of  the  residue  of  the  unexpired  term 
of  the  lease.  When  the  transfer  is  of  the  whole  of  a  term, 
the  person  taking  is  an  assignee  and  not  an  undertenant, 
although  there  is,  inform^  an  underletting.  It  is  essential  to 
an  undertenancy  that  it  be  of  a  part  only  of  the  unexpired 
term."  ^  The  case  turns  very  much  upon  the  presumption 
there  is,  in  the  absence  of  proof  to  the  contrary,  that  the 
tenant  is  an  assignee  rather  than  a  sub-lessee.  But  the  in- 
ference seems  to  be  that  if  the  holding  be  by  a  sub-lease,  if 
that  be  for  the  same  time  and  upon  the  same  terms  as  the 
original  letting,  it  would  be  an  assignment.  But  in  another 
case,  where  the  lessee  underlet  for  the  entire  term,  but  took 
a  covenant  from  the  sub-lessee  to  surrender  up  possession  to 
him  at  the  expiration  of  the  term,  and  a  right  of  re-entry  was 
reserved  in  case  the  rent  was  not  paid,  it  was  held  to  be  a  sub- 
letting and  not  an  assignment.^  It  is  obvious  that  the  origi- 
nal lessee  intended  to  reserve  an  interest  in  and  a  control  over 
the  premises.  And  in  that  case  the  court  held,  that  the 
original  lessor  could  not  avail  himself  of  a  covenant  by  the 

1  Bedford  v.  Terhune,  30  N.  Y.  457,  460 ;  Sanders  v.  Partridge,  108  Mass.  55a 

2  Martin  v.  0' Conner,  43  Barb.  522. 
VOL.  I.  33 


514  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

sub-lessee  to  his  lessor  in  respect  to  taxes.  But  a  more 
recent  English  case  than  that  of  King  v.  Wilson  seems  to  go 
far  in  settling  two  matters  about  which  the  cases  had  left  some 
doubt.  1st,  Whether  there  can  be  a  technical  sub-letting 
when  the  first  lessee  transfers  to  a  third  party  his  entire  in- 
terest, though  it  be  in  terms  a  demise  ?  2d,  Whether  in  such 
a  case  the  second  lessee  would  be  estopped  to  set  up  the  title 
of  the  original  lessor  in  an  action  for  the  rent  reserved  in  the 
second  lease  ?  Or,  in  other  words,  in  what  relation  does  such 
second  demise  place  the  tenant  in  respect  to  the  original  and 
his  immediate  lessor  ?  In  respect  to  the  matter  of  estoppel, 
the  court  quote  from  Co.  Litt.,  that  "  if  a  tenant  for  life 
demise  for  a  term,  and  die  during  the  term,  an  actual  interest 
passes  by  the  grant,  and  the  grantee  will  not  be  estoj^ped 
from  showing  the  determination  of  such  interest  by  the  grant- 
or's death  during  the  term,"  and  that  the  lease  had  thereby 
determined.  The  tenant  in  such  case  is  not  estopped  to  con- 
fess his  landlord's  title,  and  to  avoid  it  by  showing  that  his 
estate  is  determined.  The  Vice-Chan cellor  then  proceeds 
to  remark,  "  Unquestionably  a  termor  who  grants  a  lease 
longer  than  his  term,  thereby  parts  with  his  whole  interest, 
and,  during  the  term  of  the  original  lease,  the  tenant  would 
hold  of  the  owner  in  fee-simple  who  had  granted  the  original 
lease."  ..."  I  never  heard  it  doubted,  that,  when  a  person 
has  granted  a  lease  exceeding  in  duration  the  actual  term 
which  he  held,  the  effect  of  that  would  be  a  demise  of  the 
whole  term,  so  that  the  grantee  would  hold  of  tlie  grantor  of 
the  original  term,  out  of  which  the  under-lease  was  intended 
to  be  made."  The  Vice-Chancellor  refers  to  the  note  above 
cited  from  Man.  &  R.,  and  shows  that  the  position  of  the 
writer  is  not  sustained  by  the  law,  and  denies  that  a  termor 
could  create  a  tenure  between  himself  and  his  grantee  by  the 
grant  of  a  term  of  years.  "  It  never  was  before  suggested 
that  there  could  be  any  tenure  between  a  lessee  for  years,  and 
a  person  to  whom  he  granted  his  whole  term."  ..."  There 
is  nothing  to  support  the  view,  that,  where  a  deed  cannot 
operate  to  its  full  effect,  it  shall  do  so  by  way  of  estoppel,  the 
true  ground  of  estoppel  being  a  different  one,  viz.,  that  a  ten- 
ant may  not  dispute  the  right  of  his  landlord  by  saying  he 


CH.  X.  §  6.]  ESTATES   FOR   YEARS.  515 

had  nothing  in  the  property.  It  is  equally  clear  that  he  may, 
nevertheless,  show  that  the  landlord  had  an  interest  at  the 
date  of  the  lease  which  has  since  determined."  ^  In  Plush  v. 
Digges,  there  was  a  lease  for  lives,  and  the  lessees  demised 
the  lands  in  common  form,  reserving  rent,  &c.,  for  the  same 
number  of  lives  as  mentioned  in  the  original  lease,  though  not 
so  mentioned  in  the  second  demise.  The  head-note  of  the 
case  thus  states  the  law :  "  The  whole  interest  having  been 
granted,  it  operated  an  assignment."  '^  In  the  latter  case  the 
Chief  Justice  .says,  "  In  Parmenter  v.  Webber,^  although  the 
intention  of  the  parties  to  make  an  under-lease  was  manifest 
and  acted  upon,  yet  the  fact  of  the  whole  interest  being  granted 
was  held  decisive  of  the  instrument  being  an  assignment  " 
(p.  99).  The  last  four  cases  seem  to  settle  the  point,  that  a 
termor  for  years  who  demises  the  estate  to  another  for  the 
same  or  a  greater  term  than  that  for  which  he  holds  under  his 
own  demise,  does  thereby,  ipso  facto,  assign  his  term,  and  his 
lessee,  so  far  as  the  original  lessor  is  concerned,  holds  as  as- 
siR'nee  of  such  term,  and  not  as  a  sub-tenant.  And  the  same 
doctrine  seems  to  apply  whether  the  original  demise  was  by 
parol  or  in  writing.*  Strictly  speaking,  a  tenant  at  will  has 
no  estate  which  he  can  assign.  Whether,  therefore,  he  as- 
signs or  underlets,  it  creates  no  privity  of  estate  between  the 
tenant  to  whom  he  gives  possession  and  the  original  lessor. 
The  lessor  may  treat  him  as  a  disseisor  in  possession  without 
right.  But  if  he  accepts  rent  from  him,  he  creates  between 
them  the  relation  of  tenant  at  will.  Whatever  the  relations 
between  such  intermediate  tenant  and  his  lessor,  more  proper- 
ly comes  under  the  head  of  tenancies  at  will.^  And  the  same 
authorities  seem  also  to  settle,  that  if  the  intermediate  lessor 
reserve  rent  in  his  demise  to  the  second  lessee,  he  cannot  dis- 
train for  it,  since  he  has  no  reversionary  interest  remaining  in 
himself.^ 

1  Langford  v.  Selmes,  3  K.  &  John.  226,  229. 

2  5  Bligh,  N.  8.  31,  65;  Beardman  v.  Wilson,  L.  R.  4  C.  B.  57. 

3  8  Taunt.  298.    See  Hicks  v.  Dowling,  1  Ld.  Raym.  99. 

*  Lloyd  V.  Cozens,  2  Ashra.  137 ;  Holford  v.  Hatch,  Doug.  187.  See  also  Palmer 
V.  Edwards,  Doug.  87,  note. 

5  Reckhow  v.  Schanck,  43  N.  Y.  448 ;  Cunningham  v.  Holton,  55  Me.  36 ; 
Dingley  v.  Buflfum,  57  Me.  381 ;  Holbrook  v.  Young,  108  JSIass.  83  ;  post,  p.  *373. 

6  Lit.  §  215;  Hicks  v.  Dowling,  1  Ld.  Raym.  99;  Parmenter  v.  Webber.  8 


516  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

5.  The  respective  rights  of  t\\e  original  lessor  and  the  tenant 
of  a  lessee,  regarded  as  sub-lessee,  are  well  settled.  There  is 
no  privity  of  estate  between  them,  and  therefore  the  lessor 
cannot  sue  the  undertenant  upon  the  lessee's  covenant  to  pay 
rent,  nor  recover  rent  of  him  in  any  form  of  action.^  The  fol- 
lowing case  will  serve  to  illustrate  the  above  proposition,  and 
suggests  another  point  of  much  difficulty,  how  far  a  mortga- 
gee of  a  lessee  is  regarded,  in  law,  as  an  assignee  with  cor- 
responding liabilities  as  such.  A.  made  a  deed  to  J.  S.  witli 
a  condition  indorsed,  that  it  should  become  void  if  the  gran- 
tor paid  a  certain  sum  by  a  certain  time,  "  together  with  the 
use  of  the  farm."  This  sura  was  orally  fixed  by  agreement 
to  be  paid  annually.  A.  continued  to  occupy  the  farm,  and 
made  a  mortgage  to  the  defendant  of  the  same,  still  retain- 
ing possession.  The  agreed  "  use  "  or  rent  being  in  arrear,  J. 
S.  sued  the  defendant  for  the  same  as  assignee  of  A.,  the  les- 
see and  mortgagor..  But  it  was  held,  that,  as  the  defendant 
never  was  in  possession  of  the  premises,  no  action  lay  against 
him  in  favor  of  J.  S.  But  the  court  do  not  decide  whether, 
if  this  transaction  had  been  clearly  a  lease  between  the  origi- 
nal parties,  instead  of  a  mortgage  of  real  estate,  and  to  be 
treated  accordingly,  the  defendant,  as  mortgagee  of  the  lease- 
hold interest,  would  be  liable  for  rent  as  assignee  of  the  les- 
see.2  But  if  one  enters  and  holds  possession  of  premises  as 
assignee  of  the  lessee,  he  will  be  liable  for  the  rent  so  long 
as  he  continues  to  hold  it.^  Unless,  however,  the  tenant  hold- 
ing under  a  lessee  can  be  charged  as  assignee,  he  is  no  more 
liable  in  equity  than  at  law  to  the  original  lessor."^  Even 
though  the  occupation  by  the  tenant  be  without  permission 

Taunt.  293.  If  the  rent  reserved  in  the  second  lease  be  larger  than  that  reserved 
in  the  first,  and  the  first  lessor  elects  to  hold  the  second  lessee  as  assignee,  the 
intermediate  lessee,  it  would  seem,  might  recover  the  difference  between  the 
rents  reserved  in  the  first  and  second  lease  in  an  action  for  that  purpose.  See 
Smith  V.  Mapleback,  1  T.  R.  441 ;  Wollaston  v.  Hakewell,  3  M.  &  G.  323. 

1  McFarlan  i.'.  Watson,  3  Comst.  286 ;  Dartmouth  College  v.  Clough,  8  N.  H. 
22 ;  Campbell  v.  Stetson,  2  Met.  504  ;  Wms.  Eeal  Prop.  336 ;  Jennings  v.  Alex- 
ander, 1  Hilton,  154 ;  Holford  v.  Hatch,  Doug.  187 ;  Grundin  v.  Carter,  99 
Mass.  15. 

2  Graham  i;.  Way,  38  Vt.  19 ;  post,  p.  *  340. 
8  Davis  V.  Morris,  36  N.  Y.  576. 

*  Bedford  v.  Terhune,  80  N.  Y.  458 ;  Davis  v.  Morris,  36  N.  Y.  574, 


CH.  X.  §  5.]  ESTATES   FOR   YEARS.  517 

or  objection  of  any  one.^  But  in  one  case  it  was  held,  that 
where,  by  the  terms  of  the  original  lease,  the  lessor  had  a 
right  to  enter  for  non-payment  of  rent,  an  undertenant  might 
pay  his  rent  to  the  original  lessor  in  order  to  protect  his 
estate.^ 

6.  As  the  owner  of  a  well-defined  interest  or  estate  in  lands, 
a  tenant  for  years,  unless  restrained  by  the  covenants  and  con- 
ditions of  his  lease,  may  underlet  the  premises  or  any  part  of 
them,  as  has  already  been  more  than  once  assumed,  or  carve 
up  his  estate  into  such  forms  as  he  sees  fit,  and  during  the 
continuance  of  the  term  the  original  lessor  is  so  far  divested 
of  the  possession,  that,  if  he  were  to  find  the  premises  vacant, 
he  would  have  no  more  right  to  enter  upon  them  than  a 
stranger.^ 

7.  Corresponding  to  the  right  of  lessee  to  assign  or  underlet 
his  interest  is  the  right  which  the  lessor  has  to  convey  or  as- 
sign his  reversion,  and  thereby  bring  in  a  new  party  with  the 
rights  of  a  reversioner.  Nor  is  it  necessary,  now,  that  the  ten- 
ant should  attorn  to  such  grantee  or  assignee,  to  give  effect  to 
the  grant  or  assignment,  in  those  States  where  the  Stat.  4 
Anne,  c.  16,  §  9,  is  adopted.^  But  the  assignee  of  the  lease 
would  not  be  liable  for  breaches  of  covenant  arising  prior  to 
the  assignment,^  unless  the  performance  of  such  covenant  shall 
have  been  secured  by  a  mortgage  in  the  lease  of  something  to 
be  put  upon  the  premises  by  the  lessee,  in  which  case  the  as- 
signee would  hold  the  premises  subject  to  the  lessor's  right  as 
mortgagee  for  such  prior  breach.^ 

1  Kain  v.  Hoxie,  2  Hilton,  816. 

2  Peck  V.  IngersoU,  3  Seld.  528.  See  also  Collins  v.  Whildier,  Phila.  Dist. 
Court,  Legal  Intelligencer,  March  19,  1858. 

3  Nave  V.  Berry,  22  Ala.  382  ;  Brown  v.  Kite,  2  Overt.  233 ;  Brown  v.  Powell, 
25  Penn.  St.  229 ;  Wms.  Real  Prop.  335,  336 ;  Shannon  v.  Burr,  1  Hilton,  39 ; 
Crommelin  v.  Thiess,  31  Ala.  412. 

*  Wms.  Real.  Prop.  203 ;  5  B.  &  C.  512,  note.  Am.  ed.  New  York,  Moffit  v. 
South,  4  Comst.  126  ;  Massachusetts,  Keay  v.  Goodwin,  16  Mass.  1  ;  New  Hamp- 
shire, Mussey  v.  Holt,  4  Post.  248  ;  Maryland,  Funk  v.  luncaid,  5  Md.  404  ;  New 
Jersey,  Rev.  Stat.  1847,  p.  643;  Missouri,  Rev.  Stat.  c.  32,  §  11 ;  Pennsylvania, 
3  Binn.  625 ;  Connecticut,  Baldwin  v.  Walker,  21  Conn.  168 ;  Alabama,  Mussey 
V.  Holt,  6  Ala.  142.  In  Maine  it  is  doubted.  Fox  v.  Correy,  41  Me.  81  ;  Tilford  v. 
Fleming,  64  Penn.  St.  300.  The  Stat,  of  Anne  is  not  in  force  in  Illinois  ;  Fisher 
V.  Deering,  60  111.  114. 

6  Day  V.  Swackhamer,  2  Hilton,  4.  6  Barroilhet  v.  Battelle,  7  Cal.  450. 


518  LAW   OF  REAL   PROPERTY.  [BOOK   I. 

8.  As  a  general  proposition,  having  few  exceptions, 
[*337]  the  *  transfer  of  a  reversion  carries  with  it  the  rent 
due  and  accruing  thereafter,  by  the  lease  creating  the 
term  for  years,^  whether  the  assignment  of  the  reversion  be 
by  deed  or  mortgage.^  This  right  of  a  lessor  to  recover  rent 
of  the  assignee  of  the  lessee  is  not  founded  on  contract,  but 
privity  of  estate.  And  it  seems  to  be  of  little  consequence 
how  one  becomes  a  reversioner  as  to  the  assignee  of  the  lessee 
so  far  as  it  concerns  his  right  to  recover  rent  of  whoever  is 
assignee  and  tenant  when  the  rent  falls  due.  Thus,  where  a 
lessee  of  premises  let  a  part  of  them  to  a  third  person,  who 
assigned  them  to  the  present  tenant  and  the  first  lessee,  then 
suffered  his  lessor  to  recover  judgment  for  possession  of  the 
part  thus  underlet,  and  then  surrendered  his  entire  lease  to 
his  lessor,  who  cancelled  the  same,  it  was  held  that  the  original 
lessor  thereby  became  assignee  of  the  reversion  of  the  under- 
tenant's lease,  so  far  that  he  might  recover  the  rent  as  it  ac- 
crued due  from  the  undertenant,  while  the  lessor  of  the 
undertenant  had  no  right  to  recover  the  same.^  But  not  rent 
then  due  and  in  arrears.  Thus  where  rent  was  reserved  gen- 
erallv  in  a  lease,  and  the  lessor  died,  the  rent  accruing  after- 
wards belonged  to  and  was  recoverable  by  his  heirs  as  being 
his  reversioners.*  And  if  the  administrator  collect  it,  he  will 
hold  it  in  trust  for  the  heirs  at  law  and  the  widow.^  The 
same  rule  applies  if  the  intestate  die  insolvent.  The  heirs  are 
entitled  to  the  rents  until  the  estate  is  sold  by  the  administra- 
tor b}^  leave  of  court  for  the  payment  of  debts.^     And  the 

1  Burden  v.  Thayer,  3  Met.  76 ;  Keay  v.  Goodwin,  16  Mass.  1 ;  Newall  v. 
Wright,  3  Mass.  138 ;  Johnston  v.  Smith,  3  Penn.  496 ;  York  v.  Jones,  2  N.  H. 
454  ;  Farley  v.  Craig,  6  Halst.  262 ;  Scott  v.  Lunt,  7  Pet.  596 ;  Van  Rensselaer  v. 
Gallup,  5  Denio,  454  ;  Wilson  v.  Delaplaine,  3  Harring.  499  ;  Stout  v.  Keene,  Id. 
82 ;  Snj^der  v.  Riley,  1  Spears,  272  ;  Gibbs  v.  Ross,  2  Head,  437.  Although  the 
transfer  be  by  way  of  mortgage,  Russell  v.  Allen,  2  Allen,  42.  For  the  effect  of  a 
mortgage  of  his  estate  by  a  reversioner  and  the  rights  of  mortgagees,  generally,  to 
rents  of  leased  premises  mortgaged  before  and  after  leases  made,  the  reader  is 
referred  to  c.  10,  sect.  4,  pp.  *  529-*  533  of  this  work.  Gale  v.  Edwards,  52  Me. 
365. 

2  Kimball  v.  Pike,  18  N.  H.  420.  3  Grandin  v.  Carter,  99  Mass.  15. 

4  Jaques  v.  Gould,  4  Cush.  384. 

5  Robb's  Appeal,  41  Penn.  St.  45 ;  Drinkwater  v.  Drinkwater,  4  Mass.  358 ; 
Mills  V.  Merryman,  49  Me.  05 ;  King  v.  Anderson,  20  Ind.  386. 

6  Gibson  v.  Farley,  16  Mass.  280 ;  Newcomb  v.  Stebbins,  9  Met.  544. 


CH.  X.  §  5.]  ESTATES    FOR   YEARS.  519 

same  principle  applies,  though  the  rent  be  payable  in  a  share 
of  the  grain  raised  upon  the  premises.^  And  if  a  part  only 
of  the  reversion  is  conveyed,  the  grantee  or  assignee  may 
recover  his  share  of  the  rent  pro  rata  according  to  the  relative 
values  of  the  respective  parts  of  the  reversion.^ 

9.  And  this  doctrine  of  ajjportionment  of  the  right  to  rent 
among  the  several  assignees  of  the  reversion  applies  where 
this  reversion  has  descended  to  several  heirs ;  ^  and  one  of 
several  heirs  at  law  can  sue  for  his  aliquot  part  of  rent  accru- 
ing due  after  the  death  of  his  ancestor,  the  lessor  ;  ^  or  where 
a  part  of  the  reversion  is  levied  upon  by  execution  for  debt,  or 
is  set  off  to  a  widow  for  her  dower.^  This  apportionment  of 
rent  is  never  made  in  reference  to  the  length  of  time  of  occu- 
pation ;  but  whoever  owns  the  reversion  at  the  time  the  rent 
falls  due  is  entitled  to  the  entire  sum  then  due.^  But  where 
by  agreement  the  tenant  was  to  pay  so  much  rent  and  taxes 
by  the  year,  and  if  he  occupied  for  a  longer  time  he  was  to 
pay  pro  rata  for  such  time,  it  was  held  to  include  a  pro  rata 
of  the  taxes  for  the  year  as  well  as  of  the  rent.'^  The  rent, 
in  such  cases,  accrues  to  the  holder  of  the  reversion  by  reason 
of  his  privity  of  estate  with  the  lessor,  and  not  as  the  assignee 
of  a  chose  in  action  ;  and  when  a  lessor  has  once  parted  with 
his  reversion,  he  cannot,  except  as  hereafter  stated,  maintain 
any  action  for  subsequently  accruing  rent  against  his  lessee.' 
The  right  to  rent,  pro  rata^  passes  at  once,  and  the  law  comes 
in  to  apportion  it  in  reference  to  that  time,  so  that  nothing 
done,  subsequently,  by  either  of  the  original  parties,  can 
affect  the  rights  of  the  others.^     And  where  rent  is  reserved 

1  Burns  v.  Cooper,  31  Penn.  St.  428 ;  Cobel  v.  Cobel,  8  Penn.  St.  342. 

2  Montague  v.  Gay,  17  Rlass.  439 ;  Nellis  v.  Lathrop,  22  Wend.  121 ;  Reed  v. 
Ward,  22  Penn.  St.  144  ;  Bank  of  Pennsylvania  v.  Wise,  3  Watts,  394. 

3  Reed  v.  Ward,  22  Penn.  St.  141 ;  Bank  of  Pennsylvania  v.  Wise,  3  Watts, 
894;  Crosbyy.  Loop,  13  111.  625;  Clan's  ease,  10  Rep.  128;  Cole  i;.  Patterson, 
25  Wend.  456  ;  Corny n,  Land.  &  Ten.  422. 

*  Jones  V.  Felch,  3  Bosw.  63.  /     *  1  Rolle's  Abr.  237,  pi.  4,  5. 

e  Martin  v.  Martin,  7  Md.  368  ;  Burden  v.  Thayer,  3  Met.  70 ;  Bank  of  Penn- 
sylvania V.  Wise,  3  Watts,  394. 
T  May  V.  Rice,  108  Mass.  150. 

8  Peck  V.  Northrop,  17  Conn.  217  ;  Breeding  v.  Taylor,  13  B.  Mon.  477  ;  Samp- 
son V.  Grimes,  7  Blackf.  176;  Van  Wicklen  v.  Paulson,  14  Barb.  654;  Walker's 
case,  3  Rep.  23. 

9  Linton  v.  Hart,.  25  Penn.  St.  193. 


520  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

[*338]  generally,  *  without  naming  to  whom,  the  law  comes 
in  and  appropriates  it  to  whoever  is  entitled  to  the 
estate,  including  the  heirs  of  the  lessor.^ 

10.  Still,  as  above  intimated,  the  rent  and  reversion  may  be 
separated  by  the  holder  of  the  same.  Thus  where  a  rever- 
sioner conveyed  his  entire  estate,  including  his  reversion,  and 
reserved  the  rent  to  himself.^  So  where  the  demise  is  by  in- 
denture, and  the  lessee  coveuants  to  pay  rent,  the  lessor  may 
assign  or  devise  the  rent  without  granting  the  reversion,  and 
such  assignee  may  recover  the  subsequently  accruing  rent  in 
his  own  name,  in  an  action  of  debt.^  As  an  illustration  of 
the  manner  and  extent  in  which  the  holder  of  a  term  may 
create  a  rent  out  of  it,  and  deal  with  it  as  a  rent  reserved  by 
a  lessor  who  owns  the  fee,  the  following  case  may  be  cited  : 
The  lessor  being  possessed  of  a  term  for  years,  demised  the 
premises  for  a  longer  period  than  his  term,  reserving  a  rent, 
and  then  assigned  his  interest  and  the  rent  to  the  plaintiff, 
who  sued  the  lessee  for  the  rent  accruing  due  under  the  lease 
after  the  assignment.  It  was  held  under  the  Stat,  of  Anne 
that  no  attornment  was  necessary  in  such  a  case  to  charge  the 
lessee,  there  being  sufficient  privity  between  the  grantee  of 
the  rent,  and  the  tenant  of  the  land  out  of  which  the  rent 
issues,  to  sustain  the  action  without  any  formal  attornment, 
and  that  the  plaintiff's  action  would  lie.  The  court  also  cite 
a  case  from  Carthew,  where  the  lessee,  who  had  assigned  his 
entire  term  to  another  rendering  rent,  was  held  at  liberty  to 
sue  for  this  in  an  action  of  debt,  although  he  had  no  reversion 
remaining  in  himself.  Or  the  action  might  be  covenant 
broken.'^     But  the  rent  cannot  be  apportioned  by  the  landlord 

1  Whitlock's  case,  8  Kep.  71 ;  Cother  i;.  Merrick,  Hardres,  95 ;  Jaques  v. 
GouM,  4  Cush.  384. 

2  M'Murpliy  v.  Minot,  4  N.  H.  251 ;  Co.  Lit.  47  a ;  Crosby  v.  Loop,  13  III 
625  ;  Van  Rensselaer  v.  Hays,  19  N.  Y.  99 ;  Dixon  v.  Niccolls,  39  111.  384. 

3  Ryerson  v.  Quackenbush,  2  Dutch.  (N.  J.)  251;  Demarest  v.  Willard,  8 
Cow.  206;  Patten  v.  Deshon,  1  Gray,  325;  Chikls  v.  Clark,  3  Barb.  Cli.  52; 
Kendall  v.  Garland,  5  Gush.  74;  Allen  v.  Bryan,  5  B.  &  C.  512;  Robins  v.  Cox, 
1  Lev.  22 ;  Moffat  v.  Smith,  4  Comst.  126 ;  Willard  v.  Tillman,  2  Hill,  274,  s.  c. 
19  Wend.  358 ;  Buskin  v.  Edmunds,  2  Cro.  Eliz.  636. 

*  Williams  v.  Hay  ward,  1  E.  &  Ellis,  1040;  Newcomb  v.  Harvey,  Garth.  161  ; 
Com.  Dig.  Ditt.  (C.);  Baker  v.  Gostling,  1  Bing.  N.  C.  19;  Hunt  ».  Thomp- 
son, 2  Allen,  342;  Van  Rensselaer  v.  Read,  26  N.  Y.  577-579;  post,  vol.2, 
p.  *  18. 


CH.  X.  §  5.]  ESTATES    FOR   TEAR9.  521 

to  different  persons  without  the  tenant's  assent,^  though  with 
such  assent  it  may  be.^  So  a  lessor  may  devise  part  of  a  rent, 
which  will  be  good  without  attornment  of  the  tenant,  and  the 
part  so  devised  will  thereby  be  severed  from  the  reversion.^ 

11.  In  these  cases,  where  by  an  assignment  of  the  reversion 
the  rent  passes,  or  where  there  is  an  assignment  of  the  rent 
without  the  reversion,  the  assignee  sues  in  his  own  name  for 
any  rent  accruing  due  after  such  assignment.  "  It  (the  rent) 
is  not  a  thing  in  action,  but  quasi  an  inheritance."  *  Thus 
where  lessor  for  life  reserving  rent  devised  the  rent  to  another 
for  life,  who  died  between  the  periods  of  payment  of  the  rent, 
the  executors  of  such  devisee  were  held  entitled  only  to  the 
rent  due  at  the  period  of  payment  next  prior  to  his  death.^ 

12.  In  this  connection  it  may  be  proper  to  add,  that  where 
a  rent  descends  with  a  reversion  to  several  heirs,  in  an  action 
to  recover  it,  they  may,  and  it  is  very  questionable  if  they 
must  not,  all  join.^  Where  the  assignment  is  to  several  by  the 
act  of  the  lessor,  it  has  already  been  stated  that  the 
lessee  must  attorn,  *  in  order  to  be  liable  to  the  suit  [*339] 
of  any  one  of  them  for  his  separate  share  ;  '^  though  in 

the  case  of  Ards  v.  Watkin,  it  was  held,  in  case  of  a  devise  of 
a  part  of  a  rent,  that  the  devisee  may  sue  alone  for  his  share.^ 
It  may  be  added,  that  the  assignee  of  the  reversion,  in  the 
above  supposed  cases,  might  sue  the  assignee  of  the  lessee  as 
well  as  the  lessee  himself,  if  in  possession  of  the  premises, 
because  of  a  privity  of  estate,  and  because  the  covenant  to 
pay  rent  runs  with  the  land.^ 

1  Ards  V.  Watkin,  Cro.  Eliz.  637  ;  Ryerson  v.  Quackenbush,  2  Dutch.  (N.  J.) 
254. 

2  Ryerson  v.  Quackenbush,  sup.  ^  Ards  v.  Watkin,  Cro.  Eliz.  637. 

*  Ards  V.  Watkin,  Cro.  Eliz.  637  ;  Demarest  v.  Willard,  8  Cow.  206  ;  Ryerson 
V.  Quackenbush,  2  Dutch.  (N.  J.)  2-54;  Childs  t;.  Clark,  3  Barb.  Ch.  52;  Willard 
V.  Tillman,  2  Hill,  274 ;  Crosby  v.  Loop,  13  111.  625 ;  Abercronibie  v.  Redpath,  1 
Iowa,  111 ;  Van  Rensselaer  v.  Hays,  19  N.  Y.  99;  Allen  v.  Bryan,  5  B.  «&  Cress. 
612 ;  Dixon  v.  Niccolls,  39  111.  384,  386. 

5  Stillwell  V.  Doughty,  3  Bradf.  359. 

«  Porter  v.  Bleiler,  17  Barb.  155;  Martin  v.  Crompe,  1  Ld.  Raym.  340;  Hill 
V.  Gibbs,  5  Hill,  56 ;  Wall  v.  Hinds,  4  Gray,  256  ;  Decker  v.  Livingston,  15  Johns. 
479  ;  Lit.  §  316. 

■^  Ryerson  v.  Quackenbush,  2  Dutch.  254.      8  ^^.rds  u.  Watkin,  Cro.  Eliz.  637. 

9  Childs  V.  Clark,  3  Barb.  Ch.  52  ;  Journeay  v.  Brackley,  1  Hilton,  451 ;  Walk- 
er's  case,  3  Rep.  26  b ;  Howland  v.  Coffin,  12  Pick.  125. 


522  LAW   OP   REAL   PROPERTY.  [BOOK   I. 

13.  In  respect  to  the  form  of  the  action  to  be  adopted  by  or 
against  assignees  in  respect  to  covenants  in  leases,  so  much 
depends  upon  the  circumstances  under  which  the  action  may 
be  brought,  as  well  as  upon  the  statutes  of  the  several  States, 
that  it  only  seems  necessary  to  say  here,  that  an  action  of  debt 
or  covenant  would  lie  for  rent  against  the  assignee  of  a  lessee 
at  common  law,  and  would  be  local,  the  rule  of  the  common 
law  being,  that  an  action  founded  on  a  privity  of  estate  which 
relates  to  land  is  local,  while  one  founded  on  privity  of  con- 
tract is  transitory.! 

14.  Such  being  the  consequences  of  assignments  upon  the 
rights  of  the  parties,  it  is  important  that  the  assignee  of  a  re- 
version or  of  rent  should  give  notice  thereof  to  the  lessee  or 
tenant.  Otherwise  a  payment  of  rent  made  by  him  to  the 
lessor,  without  notice,  will  be  protected.^  But  where  the  les- 
sor mortgaged  his  estate,  and  the  lessee  paid  him  the  rent  be- 
fore it  was  due,  but  the  mortgagee,  when  it  was  due,  gave 
him  notice  and  demanded  the  rent,  it  w^as  held  no  defence 
that  he  had  already  paid  it  to  his  lessor.^  But  no  act  done  by 
the  assignor,  after  notice  given  to  the  other  party  of  such  as- 
signment, will  avail  him  ;  as  where  lessor,  after  assignment 
made,  released  the  lessee  from  rent  accruing  due  after  the  as- 
signment was  made.*  The  assignee  of  a  lessee,  holding  under 
a  recorded  lease  containing  a  mortgage  of  the  premises,  is 
bound  to  take  notice  of  the  contents  thereof,  and  he  would, 
without  such  record,  be  bound  to  know  the  contents  of  the 
lease  under  which  he  claims.^  Where,  however,  the  lessee  has 
paid  the  rent  of  the  term  in  advance,  he  will  not  be  liable  to 

pay  the  same  again  to  an  assignee  of  the  reversion, 
[*340]  although  a  *  purchaser,  of  the  entire  estate,  without 

notice  of  such  payment  having  been  made.  The  les- 
see, in  such  case,  is  substantially  a  purchaser  of  the  term.^ 

1  Walker's  case,  3  Rep.  22 ;  Lienow  v.  Ellis,  6  Mass.  331 ;  Pine  v.  Leicester, 
Hobart,  37  a,  note  ;  Stevenson  v.  Lambard,  2  East,  575  ;  Howland  v.  Coffin,  9 
Pick.  52,  s.  c.  12  Pick.  125 ;  McKeon  v.  Whitney,  3  Denio,  452.  In  Vermont 
such  an  action  is  transitory  by  statute.  University  of  Vermont  v.  Joslyn,  21  Vt. 
62 ;  Buskin  v.  Edmunds,  Cro.  Eliz.  636 ;  Thursby  v.  Plant,  1  Saund.  240,  n. 

2  Farley  v.  Thompson,  15  Mass.  18 ;  Fitchljurg  Co.  v.  Melvin,  15  Mass.  208. 
8  Nichols  V.  Saunders,  L.  R.  5  C.  B.  589. 

*  McKeon  v.  Whitney,  3  Denio,  452. 

5  Barroilhet  v.  Battelle,  7  Cal.  450,  454;  1  Greenl.  Ev.  §  23. 

6  Stone  V.  Patterson,  19  Pick.  476. 


CH.  X.  §  5.]  ESTATES   FOR   YEARS.  523 

15.  In  connection  with  the  doctrine  of  assignment,  it  seems 
proper  again  to  refer  to  the  case  of  an  assignment  by  lessee  of 
his  interest,  in  the  way  of  a  mortgage,  and  how  far  such  mort- 
gagee thereby  becomes  hable  as  assignee  upon  the  covenants 
running  with  the  land.  The  English  courts  regard  him  as 
standing  in  the  light  of  an  assignee,  and  liable  accordingly, 
though  he  may  not  have  entered ;  ^  and  in  this  opinion  the  court 
of  New  Hampshire  coincides,^  which  is  the  more  noticeable 
from  the  fact  that  it  is  held  by  the  courts  of  that  State  that 
a  man  may  become  an  assignee  of  a  mortgage,  with  all  legal 
rights  as  such,  by  a  simple  transfer  of  the  mortgage  debt  by 
delivery  without  any  writing.''^  In  the  United-States  court, 
one  of  the  judges,  in  giving  an  opinion,  waived  "  the  much 
controverted  and  variously  decided  doctrine  as  to  the  respon- 
sibility of  the  mortgagee  of  leasehold  property,  but  of  which 
the  mortgagee  has  never  had  possession,  for  the  performance 
of  covenants,"  &c.^  In  Vermont,  the  court  refer  to  the  Eng- 
lish doctrine  with  favor,  neither,  however,  adopting  nor  reject- 
ing it.^  In  Maryland,  the  mortgagee  of  a  term,  after  breach 
of  condition  of  the  mortgage,  was  held  to  be  liable  upon  the 
covenants  in  the  lease,  whether  he  had  taken  actual  possession 
of  the  premises  or  not.^  In  California,  the  court  held  that  the 
mortgagee  of  a  term  would  not  be  liable  upon  the  covenants 
in  a  lease,  because  of  the  peculiar  character  of  mortgages  in 
that  State.''  The  better  opinion  as  well  as  the  weight  of  au- 
thority in  this  country  seems  to  be,  that  such  mortgagee 
becomes  responsible  as  assignee  when  he  takes  possession 
under  his  deed,  but  not  before.^ 

15  a.  There  is  a  well-recognized  distinction  between  a  spe- 
cial assignment  of  a  lease  by  a  lessee,  in  respect  to  binding 
his  assignee  by  the  covenants  in  the  lease,  and  an  assignment 

1  Williams  v.  Bosanquet,  1  Brod.  &,  B.  238. 

2  M'Murphy  v.  Minot,  4  N.  H.  251.  But  this  is  questioned  in  Lord  v.  Fergu- 
son, 9  N.  H.  383. 

8  Southerin  v.  Mendum,  5  N.  H.  420.  *  Calvert  v.  Bradley,  16  How.  593. 

5  Pingrey  v.  Watkins,  15  Vt.  488.     See  also  Graham  v.  Way,  38  Vt.  24. 

6  Mayhew  v.  Hardisty,  8  Md.  479. 

1  Johnson  v.  Sherman,  15  Cal.  287.     See  Engels  v.  McIOnley,  5  Cal.  153. 

8  Felch  V.  Taylor,  13  Pick.  133 ;  2  Greenl.  Cruise,  111,  n. ;  Walton  v.  Cronly, 
14  Wend.  63  ;  Astor  v.  Miller,  2  Paige,  Ch.  68  ;  4  Kent,  Com.  8th  ed.  175,  n. ;  Mc- 
Kee  V.  Angelrodt,  16  Mo.  283 ;  Astor  v.  Hoyt,  5  Wend.  603. 


52-4  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

of  a  lease  as  a  part  of  the  property  of  an  insolvent  deLtor, 
whether  by  legal  process  under  proceedings  in  bankruptcy 
or  insolvency,  or  by  a  general  assignment  at  common  law 
for  the  benefit  of  his  creditors.  In  the  first  case  the  assignee 
is  liable,  if  he  accepts  the  assignment,  whether  he  has  entered 
upon  the  premises  under  it  or  not.^  But  where  a  debtor  by 
deed  assigned  his  estate  for  the  benefit  of  his  creditors,  and  the 
assignee  accepted  and  acted  under  the  trust,  it  was  held  to 
pass  a  lease  of  the  debtor,  and  to  make  the  assignee  liable  for 
the  rent  accruing  due  after  the  assignment  made,  although 
the  assignee  did  no  acts  to  show  his  acceptance  of  the  lease .^ 
In  the  other  case,  no  privacy  of  estate,  such  as  is  always  un- 
derstood to  be  created  in  the  first  case,  will  be  considered  to 
have  arisen  unless  the  lease  shall  have  been  specially  men- 
tioned in  the  general  assignment,  or  the  assignee  shall  have 
elected  to  claim  the  benefit  of  the  same.  And  in  cases  of 
general  assignments  by  insolvents,  or  by  proceedings  in  in- 
solvency, the  assignee  will  have  a  reasonable  time  in  which  to 
ascertain  whether  the  lease  can  be  made  available  for  the 
benefit  of  creditors  before  he  will  be  obliged  to  make  his 
election,  and  this  election  may  be  manifested  by  acts  as  well 
as  by  words.^ 

16.  But  whether  the  assignment  be  absolute  or  conditional, 
if  the  assignee  enters  under  it  and  occupies  the  estate,  he  can 
neither  deny  the  validity  of  the  assignment  in  an  action  by 
the  lessor  for  rent,  nor  can  he  escape  liability  for  the  same  by 
abandoning  the  premises  before  the  expiration  of  the  lease.* 

1  Quackenboss  v.  Clarke,  12  Wend.  555 ;  Taylor,  Land.  &  Ten.  3d  ed.  §  450 ; 
2  Piatt,  Leases,  422. 

•i  White  V.  Hunt,  L.  R.  6  Exch.  32. 

3  Journeay  v.  Brackley,  1  Hilton,  448  ;  Copeland  v.  Stephens,  1  B.  &  Aid.  594; 
Bagley  v.  Freeman,  1  Hilton,  196 ;  Carter  v.  Warne,  4  C.  &  P.  191 ;  Pratt  v. 
Levan,  1  Miles,  358. 

4  Blake  v.  Sanderson,  1  Gray,  332 ;  Carter  v.  Hammett,  18  Barb.  608,  s.  c. 
12  Barb.  253  ;  Dorrance  t;.  Jones,  27  Ala.  630.  In  the  latter  case,  a  debtor 
assigned  his  goods  and  store,  and  his  assignee  entered  and  occupied  the  store  till 
the  goods  were  sold,  and  then  quit  possession.  Held  to  be  such  an  entry  as  to 
bind  him  for  rent  of  store  for  the  whole  balance  of  the  term. 


CH.  X.  §  6.]  ESTATES   FOR    YEARS.  625 

*  SECTION"  VI.  [*341] 

OP    EVICTION",   DESTRUCTION,  AND  USE  OF   PREMISES 

1.  Tenant  not  liable  for  rent  if  ericted. 

2.  Of  effect  of  eviction  by  eminent  domain. 

3.  Of  effect  of  wrongful  entry  by  lessor. 
3  a.  What  acts  work  an  eviction. 

3  b.  Of  eviction  by  a  stranger. 

4.  Release,  surrender,  or  eviction,  alone  relieves  tenant. 

5.  Destruction  of  premises  does  not. 

6.  How  far  covenants  affected  by  loss  of  the  property. 

7.  Lessor  not  bound  to  repair. 

7  a.     Tenant,  how  far  liable  to  strangers. 

7  b.    Tenant  liable  for  excavations. 

8.  Of  restricted  liability  of  lessee  under  his  covenants. 

8  a.     Tenant  not  liable  for  fire. 

9.  Of  implied  obligation  as  to  use  from  nature  of  premises. 

10.  Lease  of  a  room  in  a  building  which  is  destroyed. 

11.  Lessee  not  restricted  in  use  of  building. 

12.  Mode  of  using  restricted  by  lease. 

1.  Stringent  as  is  the  liability  of  a  lessee  and  his  assignee, 
under  the  covenants  of  a  lease,  as  has  been  shown,  no  claim 
for  rent  arises  except  where  it  is  payable  in  advance,  until  the 
lessee  shall  have  enjoyed  the  premises  the  whole  time  for 
which  the  payment  of  a  rent  is  stipulated  to  be  made.^  And 
where  no  time  is  fixed  for  such  payment  to  be  made,  it  is  not 
due  till  the  end  of  a  year.^  So,  where  payable  quarterly,  no 
part  is  due  till  the  end  of  the  quarter.^  Nor,  when  payable 
at  a  particular  day,  can  it  be  apportioned  as  to  a  part  of  the 
time  for  which  the  tenant  may  occupy.*     Accordingly,  where 

1  Clun's  case,  10  Eep.  128 ;  Boardman  v.  Osborn,  23  Pick.  295  ;  Martin  v. 
Martin,  7  Md.  375. 

2  Menough's  Appeal,  5  "Watts  &  S.  432 ;  Ridgley  r.  Stillwell,  27  Mo.  128; 
Crabb,  Real  Prop.  §  292  ;  3  Cruise,  Dig.  272. 

3  Garvey  v.  Dobyns,  8  Mo.  213 ;  Wood  v.  Partridge,  11  Mass.  488 :  Perry  v. 
Aldrich,  13  N.  H.  843. 

*  Smith,  Land.  &  Ten.  134 ;  3  Kent,  Com.  470  ;  Menough's  Appeal,  6  Watts 
&  S.  432.  The  Stat.  Geo.  II.  as  to  appointment  of  rent  is  not  in  force  in  New 
Hampshire.  Perry  v.  Aldrich,  13  N.  H.  343  ;  Clun's  case,  10  Co.  128  a;  Cruger 
V.  McLaury,  41  N.  Y.  223 ;  Cameron  v.  Little,  62  Maine,  560,  applied  in  cases 
of  tenancy  at  will. 


526  LAW  OF  EEAL  PROPERTY.  [BOOK  I. 

by  virtue  of  a  right  reserved  to  the  lessor  to  determine  the 
lease  at  any  time  by  selling  the  estate,  and  he  did  so  in  the 
interval  between  the  times  of  payment  of  rent,  it  was  held 
that  he  could  not  recover  in  any  form  for  the  rent  or  use  and 
occupation  of  the  premises  between  the  da}''  of  the  last  pay- 
ment of  rent  and  the  determination  of  the  lease. ^  And 
the  same  doctrine  was  applied  where  the  demise  was  by 
parol,  the  tenancy  having  been  determined  by  the  lessor 
between  the  rent-days.^  Thus  where  a  parol  lease  was 
for  a  year,  with  the  rent  payable  quarterly,  and  in  the  in- 
terval between  two  of  these  payments  the  lessor  sold  the 
premises,  and  the  purchaser  notified  the  tenant  to  quit,  and 
he  did  so  before  another  quarterly  rent  fell  due,  it  was  held 
that  the  tenant  was  not  liable  for  the  rent  between  the  next 
previous  quarter-day  and  the  time  of  his  quitting  possession.^ 
If,  therefore,  the  lessee  be  evicted  from  the  premises  by  a 
paramount  title,  it  will  discharge  him  from  the  payment  of 
any  rent  wliich  may  fall  due,  by  the  terms  of  the  lease,  after 
such  eviction.^  And  in  respect  to  what  shall  be  held  to  be 
such  an  eviction  as  to  offset  to  the  lessor's  right  to  recover 
rent,  it  was  held,  that,  if  a  landlord  create  a  nuisance  in  an- 
other part  of  the  building  wdiich  is  the  subject  of  the  lease,  it 
is  so  far  an  eviction  as  to  justify  the  tenant  in  abandoning  the 
premises.  So  if  the  premises,  when  leased,  are  under  a  mort- 
gage, and  the  mortgage  is  foreclosed  by  a  sale  of  the  same, 
the  lessee  may  abandon  them.  Or  if  a  third  party  has  recov- 
ered judgment  for  possession  of  the  leased  premises,  and  the 
tenant  yields  possession,  it  is  an  eviction.  He  need  not  wait 
to  be  actually  ejected  by  force.^  And  the  same  rule  would 
apply,  pro  rata,  if  he  were  evicted  from  a  part  of  the  premises 

1  Nicholson  v.  Munigle,  6  Allen,  215 ;  Zule  v.  Zule,  24  Wend.  76 ;  Gimman  v. 
Legge,  8  B.  &  C.  324  ;  Hall  &  Burgess,  5  B.  &  C.  332. 

2  Fuller  V.  Swett,  6  Allen,  219,  n. 

8  Robinson  v.  Deering,  56  Me.  358;  Clun's  case,  10  Co.  128  a. 

*  Pitchburg  Co.  v.  Melvin,  15  Mass.  268;  Wood  v.  Partridge,  11  Mass.  488  ; 
Russell  V.  Fabyan,  7  Fost.  (N.  H.)  543;  Boardman  v.  Osborn,  23  Pick.  295;  2 
Piatt,  Leases,  129  ;  Rolle,  Abr.  Rent,  0.;  Franklin  v.  Carter,  1  C.  B.  750;  Pope 
V.  Biggs,  9  B.  &  C.  245. 

6  Home  Life  Ins.  Co.  v.  Sherman,  46  N.  Y.  372. 


CH.  X.  §  6.]  ESTATES   FOR   YEARS.  527 

by  any  other  means  than  by  the  act  of  the  lessor  himself.^ 
But  an  expulsion  from  a  part  of  the  premises  will 
*  not  affect  the  tenant's  liability  under  any  other  of  [*342] 
the  covenants  in  his  lease  than  that  for  the  payment 
of  rent ;  as,  for  instance,  the  covenant  to  repair.^  And  as  an 
illustration  of  some  of  the  foregoing  propositions,  where  one 
hired  a  store  in  an  unfinished  building  of  another,  from  a  cer- 
tain date,  and  the  tenant  was  to  lay  out  certain  expenses  in 
fitting  it  up,  and  the  landlord  was  to  do  other  things,  and 
after  the  date  fixed,  but  before  the  building  and  room  were 
completed,  it  was  burned  down,  it  was  left  to  the  jury  to 
determine  whether  the  lessee  had  taken  possession  under 
his  lease  or  not,  so  as  to  be  vested  with  the  term.  If  he  had, 
he  was  liable  for  the  rent ;  otherwise  he  was  not.  Nor  would 
the  non-completion  of  the  building  be  a  defence  in  an  action 
for  the  rent.^  But  if  one  is  sued  upon  a  covenant  for  rent, 
he  may  recoup  for  damages  occasioned  by  a  breach  of  other 
covenants  in  the  same  lease,  though  they  are  implied  ones 
only.^  And  if,  in  cases  like  the  one  above  stated,  it  had  been 
stipulated  in  the  lease  that  rent  was  not  to  commence  until 
the  building  was  completed,  the  lessee  would  not  be  liable 
until  then,  though  he  were  to  enter  and  occupy  the  premises 
before  they  were  finished.^ 

2.  It  has  sometimes  been  attempted  to  apply  the  principle 
of  eviction  from  a  part  of  the  premises,  where  lands  under 
lease  have  been  appropriated  to  public  use  under  the  exercise 
of  eminent  domain  ;  and  the  rule  adopted  in  Missouri  is  to 
have  such  appropriation  extinguish  the  rent,  payable  by  the 
tenant  fro  tanto^  according  to  the  value  of  the  part  taken 
compared  with  the  whole.^     But  the  better  rule,  and  one  be- 

1  Hegeman  v.  McArthur,  1  E.  D.  Smith,  147 ;  Broom's  Maxims,  212 ;  Steven- 
son V.  Lambard,  2  East,  575;  Smith  v.  Malings,  Cro.  Jac.  160;  Hunt  v.  Cope, 
Cowp.  242;  Comyn,  Land.  &  Ten.  523;  Morrison  v.  Chadwick,  7  C.  B.  283 ; 
Martin  v.  Martin,  7  Md.  875 ;  Lawrence  v.  French,  25  Wend.  443. 

2  Morrison  v.  Chadwick,  7  C.  B.  283. 
8  LaEarge  v.  Mansfield,  31  Barb.  345. 

*  Mayor  v.  Mabie,  3  Kern.  151 ;  Wright  v.  Lattin,  88  111.  293. 

6  Epping  t;.  Swanzey,  28  Ga.  422. 

6  Biddle  );.  Hussman,  23  Mo.  697  ;  Kingsland  v.  Clark,  24  Mo.  24.  The  statute 
of  New  York  provides  in  such  a  case  for  an  abatement  pro  rata  of  the  tenant's 
rent.     Gillespie  v.  Thomas,  15  Wend.  468. 


528  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

lieved  to  be  adopted  in  most  of  the  States,  is,  that  such  a 
taking  operates,  so  far  as  the  lessee  is  concerned,  upon  his 
interest  as  property  for  which  the  public  are  to  make  him 
compensation,  and  does  not  affect  his  liability  to  pay  rent  for 
the  entire  estate  according  to  the  tenor  of  his  lease.^  And 
this  extends  to  ground  rent ;  such  taking  does  not  abate  any 
part  of  the  rent  due.^  So  it  has  been  attempted  to  protect  a 
tenant  from  pajdng  rent  in  toto  or  pro  tanto,  where  the  leased 
premises  have  been  seized  upon  and  tenant  evicted  by  a  pub- 
lic enemy  or  a  public  armed  force.  In  one  case  the  court 
allowed  an  abatement  of  rent  while  the  tenant  was  thus  inter- 
rupted in  his  enjoyment  of  the  premises.^  But  the  law  seems 
to  be  well  settled  that  he  would  still  be  liable  for  the  rent, 
though  evicted  in  the  manner  supposed.* 

3.  If  the  lessor  himself  interferes  to  deprive  the  lessee  of 
the  enjoyment  of  the  leased  premises,  the  law  is  in  many 
respects  much  more  stringent  than  where  the  act  is 
[*343]  done  by  a  stranger.  *Thu.s,  if  he  enters  and  evicts 
the  tenant,  wrongfully,  from  a  part  of  the  premises, 
it  operates  as  a  suspension  of  the  entire  rent,  until  -possession 
shall  be  restored,  instead  of  its  being  apportioned,  as  in  the  cases 
before  stated,  where  the  eviction  of  a  part  was  the  act  of  a 
stranger.  Such,  of  course,  would  be  the  effect  if  the  eviction 
by  the  lessor  was  from  the  entire  premises.^     So  if  the  land- 

1  Parks  V.  Boston,  15  Pick.  198 ;  Ellis  v.  Welch,  6  Mass.  246  ;  Patterson  v. 
Boston,  20  Pick.  159 ;  McLarren  v.  Spalding,  2  Cal.  510 ;  Workman  v.  Mifflin, 
30  Penn.  St.  362;  Frost  v.  Earnest,  4  Whart.  86;  Foote  v.  Cincinnati,  11  Ohio, 
408.  Such  a  taking  is  not  a  breach  of  the  covenant  for  quiet  enjoyment.  But 
see  Cuthbert  v.  Kulm,  3  Whart.  357,  that  the  rent  would  be  apportioned.  Folts 
V.  Huntley,  7  Wend.  210,  taking  leased  premises  for  public  use  does  not  relieve 
the  tenant  from  paying  the  rent  reserved ;  Dyer  v.  Wightman,  65  Penn.  St. 
427  ;  Peek  v.  Jones,  70  Penn.  St.  85. 

2  Workman  v.  Mifflin,  30  Penn.  St.  362.        ^  Bayly  v.  Lawrence,  1  Bay,  499. 

*  Wagner  v.  White,  4  Harr.  &  J.  564  ;  Paradine  v.  Jane,  Aleyn,  26  ;  Schilling 
V.  Holmes,  23  Cal.  230 ;  Clifford  v.  Watts,  L.  R.  5  C.  P.  586. 

*  Hegeman  v.  McArthur,  1  E.  D.  Smith,  147 ;  Salmon  v.  Smith,  Saund.  204, 
n.  2;  I^wis  v.  Payn,  4  Wend.  423;  Wilson  v.  Smith,  5  Yerg.  379  ;  Christopher 
V.  Austin,  1  Kern.  216  ;  Broom's  Maxims,  212 ;  Ascough's  case,  9  Rep.  135 ; 
Shumway  v.  Collins,  6  Gray,  227  ;  Morrison  v.  Chadwick,  7  C.  B.  383;  Lawrence 
V.  French,  25  Wend.  443 ;  Dyett  v.  Pendleton,  8  Cow.  727  ;  Edgerton  v.  Page, 
1  Hilton,  328 ;  20  N.  Y.  281  ;  Hodgkins  v.  Robson  and  Thornborow,  1  Vent. 
276,  s.  c.  PoUexf.  142;  Schilling  v.  Hohnes,  23  Cal.  230;  Pier  v.  Carr,  69  Penn. 
6t.  326  ;  Wright  v.  Lattin,  38  111.  293. 


CH.  X.  §  6.]  ESTATES   FOR   YEARS.  529 

lord  make  a  second  lease  of  a  part  of  the  premises  embraced 
in  a  prior  one,  and  tlie  second  lessee  evicts  the  first,  it  is  so 
far  an  eviction  by  the  lessor,  that  he  may  refuse  to  pay  rent, 
may  abandon  the  premises,  and  remove  the  buildings,  fences, 
&c.,  which  he  has  erected  thereon.^  In  case  of  eviction,  the 
tenant  is  exempt  from  the  payment  of  rent  from  the  quarter- 
day  anterior  to  such  eviction,  and,  besides  this,  may  recover 
damages  therefor.^  If,  after  such  eviction,  the  lessee  returns 
and  occupies  again,  the  rent  revives,^  for,  as  before  stated,  if 
the  eviction  is  from  a  part  only,  the  tenancy  may  continue, 
but  being  suspended  as  to  the  rent.  But  to  work  this  sus- 
pension of  rent  pro  tanto  or  in  toto,  as  the  case  may  be,  there 
must  be  something  more  than  a  mere  entry  upon  the  land  or 
premises  by  the  lessor,  and  doing  acts  of  trespass  tliereon. 
For  these  he  is  liable  as  any  other  trespasser.  There  must  be 
something  which,  in  law,  amounts  to  an  eviction  or  expulsion 
of  the  tenant,  to  work  a  suspension  or  extinguishment  of  the 
rent.^  What  shall  work  such  an  eviction  or  expulsion,  it  is 
often  dijBBcult  to  determine.  Particular  cases  may  be  referred 
to,  from  which  a  rule  may  perhaps  be  defined,  more  clearly 
than  from  the  statement  of  any  rule  of  general  application. 
In  Hunt  V.  Cope,  above  cited,  the  landlord  entered  and  tore 
down  the  roof  and  ceiling  of  a  summer-house  in  the  garden, 
a  part  of  the  premises  leased,  and  the  court  held  that  it  ought 
to  go  to  a  jury  to  determine  whether  this  was  an  eviction.  In 
Smith  V.  Raleigh,  the  landlord  railed  off  a  portion  of  the  garden 
forming  a  part  of  the  leased  estate,  and  the  tenant  thereupon 
quitted  the  premises,  and  it  was  held  that  he  might  treat  it  as 
an  eviction.^  In  Dyett  v.  Pendleton,  the  majority  of  the 
court  allowed  the  tenant  to  regard  as  an  act  of  ouster  from 
a  tenement  which  he  hired,  consisting  of  a  part  of  a 
*  dwelling-house,  the  suffering  of  prostitutes  openly  [*344] 

1  Wright  V.  Lattin,  38  111.  293.  «  Chatterton  v.  Fox,  5  Duer,  64. 

8  Martin  v.  Martin,  7  Md.  378  ;  Morrison  v.  Chadwick,  7  C.  B.  283. 

4  Bennet  v.  Bittle,  4  Rawle,  399 ;  Martin  v.  Martin,  7  Md.  375 ;  Comyn,  Land. 
&  Ten.  623 ;  Salmon  v.  Smith,  Saund.  204,  n.  2  ;  Hunt  v.  Cope,  Cowp.  242 ;  Wil- 
son V.  Smith,  5  Yerg.  379 ;  Lawrence  v.  French,  25  Wend.  443 ;  Lounsbery  v. 
Snyder,  31  N.  Y.  514 ;  Edgerton  v.  Page,  20  N.  Y.  281,  284 ;  Fuller  v.  Ruby,  10 
Gray,  290 ;  Royce  v.  Guggenheim,  106  Mass.  203 ;  Pier  v.  Carr,  69  Penn.  St  326. 

6  Smith  V.  Raleigh,  3  Campb.  513. 
VOL.   I.  34 


530  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

to  occupy  the  other  part  of  the  house,  whose  conduct  was 
noisy  and  indecent,  disturbing  the  tenant  in  his  occupa- 
tion, and  rendering  it  disreputable  for  moral  and  decent  peo- 
ple to  dwell  in  it.  This,  it  will  be  perceived,  was  a  moral 
eviction,  without  any  act  done  in  or  upon  the  premises  leased. 
One  of  the  court  likens  it  to  the  establishment  in  another 
part  of  the  house  of  a  hospital  for  the  small-pox  or  plague,  or 
a  deposit  of  gunpowder,  or  of  offensive  or  pestilential  mate- 
rials.^ In  Lewis  v.  Payn,  the  court,  referring  to  the  last-men- 
tioned case,  say,  "  It  seems  to  be  held  that  any  obstruction  by 
the  landlord  to  the  beneficial  enjoyment  of  the  demised  prem- 
ises, or  a  diminution  of  the  consideration  of  the  contract  by 
the  acts  of  the  landlord,  amounts  to  a  constructive  eviction.''  ^ 
Where  land  was  leased  to  an  agricultural  society  for  exhibi- 
tions, and  the  lessor  let  pigs  into  the  premises,  which  rooted 
up  the  ground  and  rendered  it  unfit  for  the  uses  of  the 
society,  it  was  held  to  be  such  an  eviction,  that  the  lessee 
could  avoid  paying  rent  therefor.^  In  Upton  v.  Greenlees, 
Jervis,  XD.  J.,  says,  "  It  is  extremely  difficult,  at  the  present 
day,  to  define  with  technical  accuracy  what  is  an  eviction." 
"  I  think  it  may  be  taken  to  mean  this,  —  not  a  mere  trespass 
and  nothing  more,  but  something  of  a  grave  and  permanent 
character,  done  by  the  landlord  with  the  intention  of  depriv- 
ing the  tenant  of  the  enjoyment  of  the  demised  premises."* 
It  must  be  some  permanent  act  done  which  deprives  the  lessee 
of  some  part  of  the  premises.  A  mere  neglect  to  make  repairs 
will  not  justify  the  tenant  in  quitting,  although  there  be  a 
covenant  on  the  part  of  the  landlord  to  repair.  But  though 
no  implied  covenant  of  right  to  enjoy  light  over  adjacent 
premises  passes  by  a  lease  of  a  dwelling-house,  and  the  erec- 

i  Dyett  V.  Pendleton,  8  Cow.  727.  But  see  Royce  v.  Guggenheim,  106  Mass. 
204. 

2  Lewis  V.  Payn,  4  Wend.  423.  3  Wright  v.  Lattin,  38  111.  293. 

*  Upton  V.  Greenlees,  17  C.  B.  64.  The  limits  of  this  work  do  not  admit  of 
examining  at  length  a  pretty  large  class  of  cases  where  the  question  has  been, 
whether  a  former  and  existing  demise  of  a  part  of  leased  premises  is  such  an 
eviction  as  to  deprive  the  landlord  of  his  claim  for  rent  while  such  prior  demise 
exists.  See  Lawrence  v.  French,  25  Wend.  443,  and  cases  cited ;  Neale  v.  Mac- 
kenzie, 1  M.  &  W.  747,  reversing  s.  c.  in  2  Crompt.  M.  &  R.  84  ;  McElderry  v. 
Flannagan,  1  Harr.  &  G.  308 ;  Christopher  v.  Austin,  1  Kern.  216 ;  Hayner  v. 
Smith,  63  lU.  433. 


CH.  X.  §  6.]  ESTATES   FOR   YEARS.  531 

tion  of  a  house  upon  adjacent  land  which  obstructs  and 
darkens  the  wmdows  of  a  leased  dwelling-house  is  not  held 
to  be  an  eviction,  yet  if  the  erection  of  a  house  be  so  near 
the  leased  premises  as  to  deprive  them  entirely  of  light,  and 
to  render  parts  of  them  uninhabitable,  it  would  be  such  an 
interference  with  them  as  to  justify  the  tenant  in  treating  it 
as  an  eviction,  and  abandoning  the  premises.^ 

3  a.  Not  only  must  the  act  be  such  as  materially  interferes 
with  the  enjoyment  of  the  premises  by  the  lessee,  but  it  must 
have  been  done  by  the  lessor  or  his  procuration.  If  the  act 
be  done  by  a  stranger,  it  is  no  ground  of  defence  against  the 
claim  for  rent.^  Thus  the  erection  of  a  wall  by  an  adjacent 
owner,  or  even  by  the  lessor  himself,  upon  his  premises,  which 
darkens  the  windows  of  the  leased  premises,  will  not  be  deemed 
such  an  eviction  as  to  relieve  the  tenant  from  the  payment 
of  rent.^  Nor  would  a  mere  entrj'^  by  the  lessor  himself  be  an 
eviction,  if  done  for  the  lessee's  benefit,  as,  for  instance,  to 
make  repairs.*  An  act  which  destroys  the  premises,  or  renders 
them  useless,  may  be  regarded  as  an  eviction  so  far  as  affect- 
ing the  liability  to  pay  rent.  And  a  disturbance  of  the  en- 
joyment of  them  which  renders  them  useless  would  have  the 
same  effect.^  Thus  where  a  building  was  let  for  the  purposes 
of  a  lodging-house  adjoining  the  wall  of  another  house  not 
belonging  to  the  lessor,  the  wall  and  roof  of  the  premises 
being  secured  to  this  adjoining  wall,  the  owner  of  this,  having 
raised  his  building,  removed  the  roof  and  one  wall  of  the 
leased  premises,  and  the  tenant  abandoned  the  same,  it  was 
held  to  be  such  an  eviction  as  to  suspend  the  liability  for  rent 
from  the  time  of  the  eviction.^  And  many  of  the  cases  go  to 
sustain  the  proposition,  that  nothing  short  of  an  eviction  which 
deprives  the  tenant  of  the  possession  of  the  premises  would 
bar  a  claim  for  rent,  and  that,  if  the  tenant  actually  retains 
possession,  he  cannot  resist  payment  of  the  rent.  The  propo- 
sition may  perhaps  be  reconciled  with  what  has  already  been 

1  Royce  v.  Guggenheim,  106  Mass.  202-205;  Wright  v.  Lattin,  38  111.  293. 

2  Welles  V.  Castles,  3  Gray,  326. 

8  Hazlett  V.  Powell,  30  Penn.  St.  293;   Palmer  r.  Wetmore,  2  Sandf.  316; 
Eoyce  v.  Guggenheim,  106  Mass.  205;  Moore  v.  Webber,  71  Penn.  St.  432. 
*  Peterson  v.  Edmonson,  5  Harring.  378. 
5  HaUigan  v.  Wade,  21  111.  479.  6  Bentley  v.  Sill,  35  lU.  414. 


532  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

said,  and  what  is  hereafter  stated,  by  supposing  that  what  is 
meant  in  some  of  the  cases  is,  that  the  acts  spoken  of  as  tan- 
tamount to  an  eviction  were  such  as  warranted  the  lessee  in 
abandoning  the  premises  and  avoiding  the  payment  of  rent. 
Thus,  in  Edgerton  v.  Page,  the  Landlord  discharged  waste  and 
filthy  water  upon  the  premises,  and  suffered  a  waste-pipe  in 
another  part  of  the  building  to  be  out  of  repair,  to  the  great 
nuisance  and  injury  of  the  tenant,  who  did  not  abandon  pos- 
session, and  it  was  held  to  be  no  eviction.^  In  other  cases, 
courts  have  seemed  inclined  to  treat  acts  which  render  the 
premises  useless  for  the  purposes  for  which  they  are  let  as  of 
itself  an  eviction,  so  far  as  to  bar  rent,  although  the  tenant 
may  not  have  actually  abandoned  their  occupation.  Thus  in 
the  case  cited  of  Halligan  v.  Wade,  the  court  say,  by  way  of 
illustration,  that  it  might  be  tantamount  to  an  eviction  of 
premises  let  for  the  purposes  of  a  respectable  public  house  to 
convert  a  part  of  the  premises  into  a  pig-stye  or  cattle-pens, 
or  a  low,  noisy  liquor-saloon,  or  a  tinman's  shop,  and  would 
bar  a  claim  for  rent  for  the  same.  While,  in  Dyett  v.  Pendle- 
ton, the  case  seems  to  go  upon  the  ground  that  the  tenant  had 
been  compelled  to  abandon  the  premises,  because  a  further 
occupation  of  them  had  been  rendered  impossible,  or  incon- 
venient and  useless,  by  the  acts  of  the  lessor.^  And  the 
cases  seem  to  concur,  that  a  mere  interference  with  the  person 
of  the  tenant  amounting  to  a  trespass,^  or  a  mere  trespass  on 
the  premises,  though  attended  with  great  inconvenience  or 
ol)struction  to  the  tenant  in  the  beneficial  enjoyment  of  them, 
wall  not  amount  to  an  eviction  ;  ■*  and,  in  one  of  the  cases,  it 
is  held,  that,  to  have  the  entry  of  the  lessor  work  an  eviction 
of  the  tenant,  it  must  be  followed  by  a  continuous  possession.^ 
The  apparent  discrepancy  between  the  cases  may  be  accounted 

1  Edgerton  v.  Page,  1  Hilton,  330 ;  8.  c.  20  N.  Y.  281.  See  Jackson  v.  Eddy, 
12  Mo.  209 ;  St.  John  v.  Palmer,  5  Hill,  599.  See  Vatel  v.  Herner,  1  Hilton, 
151,  where  the  use  of  a  privy  adjoining  the  premises,  though  very  offensive, 
was  not  an  eviction. 

2  Dyett  V.  Pendleton,  8  Cow.  727.  »  "Vatel  v.  Herner,  1  Hilton,  151. 

*  Edgerton  v.  Page,  sup. ;  Bac.  Abr.  Eent,  L.  44 ;  Wilson  v.  Smith,  5  Yerger, 
399;  Briggs  v.  Hall,  4  Leigh,  485;  Day  v.  Watson,  8  Mich.  535;  Cohen  v.  Du- 
pont,  1  Sandf.  60;  Gardner  v.  Keteltas,  3  Hill,  330;  Hunt  v.  Cope,  Cowp.  242; 
Elliot  V.  Aiken,  45  N.  H.  35 ;  Bennett  v.  Bittle,  4  Rawle,  339. 

*  Day  V.  Watson,  sup. 


CH.  X.  §  6.]  ESTATES   FOR   TEARS.  533 

for  by  the  dicta  of  the  courts  having  reference  to  different 
states  of  facts,  and  being  intended  to  be  limited  in  their  bear- 
ing to  cases  like  those  in  which  they  were  applied. 

8  b.  To  recur  to  the  rights  of  the  tenant  on  eviction  in  part 
or  in  the  whole,  it  seems  if  this  be  by  a  stranger,  other  than 
the  lessor  himself,  and  is  from  a  j)art  only,  the  rent  will  be 
apportioned  and  payable  for  such  part  as  remains.^  If  it  is  by 
the  lessor  himself,  the  tenant  may  elect  whether  to 
abandon  entirely  and  put  an  end  *  to  the  tenancy  and  [*345] 
rent  altogether ,2  or  to  retain  such  part  as  remains,  free 
from  liability  to  pay  any  rent,  so  long  as  the  eviction  contin- 
ues. The  rule  to  be  derived  from  the  several  cases  seems  to 
be  this :  If  there  has  been  an  eviction  from  the  whole  prem- 
ises by  the  lawful  act  of  a  stranger,  the  whole  rent  of  the 
premises  is  suspended.  If  such  eviction  be  from  a  part  only 
of  the  premises,  the  rent  will  be  apportioned  and  a  part  sus- 
pended, according  to  the  relative  value  of  the  premises  from 
which  the  tenant  is  evicted.  But  if  the  eviction  be  by  the 
act  of  the  lessor,  or  by  his  procurement  and  authority,  the 
rent  of  the  entire  premises  will  be  suspended  while  such 
eviction  continues,  whether  it  be  of  the  Avhole  premises  or 
only  a  part  of  them.^  If  a  part  of  the  premises  leased  is  held 
by  a  stranger  adversely  to  the  lessor,  the  lessee  is  not  obliged 
to  accept  of  the  other  part  and  pay  rent  for  the  same.*  But 
where  the  lessor  himself  has  withheld  a  part  of  the  leased 
premises,  and  the  lessee  has  nevertheless  elected  to  go  on  and 
occupy  the  remainder,  he  cannot  refuse  to  pay  rent  joro  rata 
for  what  he  enjoys,'^  since  the  lessee  cannot  be  said  to  have 
been  evicted  from  that  which  he  never  possessed.     It  was  a 

1  Dyett  V.  Pendleton,  8  Cow.  727 ;  Smith  v.  Matings,  Cro.  Jac.  160 ;  Law- 
rence V.  French,  25  Wend.  443  ;  Comyn,  Land.  &  Ten.  217  ;  Id.  525.  So  where 
the  partial  eviction  was  from  part  of  an  easement  in  lessor's  other  lands,  like  a 
right  to  flow  a  pond,  to  work  a  mill  demised.      Blair  v.  Claxton,  18  N.  Y.  529. 

2  Smith  V.  Raleigh,  3  Camp.  513  ;  Lawrence  v.  French,  25  Wend.  443  ;  Chris- 
topher i\  Austin,  1  Kern.  219  ;  Edgerton  v.  Page,  1  Hilton,  328 ;  lieed  v.  Rey- 
nolds, 37  Conn.  469. 

3  Hegeman  v.  McArthur,  1  E.  D.  Smith,  147;  Vermilya  v.  Austin,  2  E.  D. 
Smith,  203  ;  Halligan  v.  Wade,  21  111.  479  ;  Lewis  v.  Payn,  4  Wend.  427.  But 
see  Fuller  v.  Ruby,  10  Gray,  289,  where  the  doctrine  is  doubted.  But  this 
was  prior  to  the  case  of  Leishman  v.  White,  1  Allen,  489,  where  it  is  affirmed. 
Hayner  v.  Smith,  68  111.  433. 

*  Hay  V.  Cumberland,  25  Barb.  594.  *  Hurlbut  v.  Post,  1  Bosw.  28. 


534  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

mere  withholding  a  part  of  that  which  he  had  bargained  to  an- 
other. But,  as  the  tenancy  in  that  case  is  not  at  an  end  ;  as 
soon  as  the  occupancy  is  restored,  the  liability  revives  to  pay 
rent  from  and  after  such  restoration.^  Where  the  lessor  enters 
and  expels  the  tenant,  if  the  latter  does  not  choose  to  return, 
the  rent  is  gone,  though,  if  he  returns,  it  is  only  suspended 
during  the  expulsion.^  But  whether  he  thereby  becomes 
liable  to  pay  the  intermediate  rent  for  the  part  he  has  con- 
tinued to  occupy,  and  if  so,  whether  for  use  and  occupation, 
was  till  lately  an  open  question,  or  at  least  one  not  well  set- 
tled.^ Though,  under  the  law  of  entirety  of  contract,  it  is 
difficult  to  see  how  a  landlord  can  take  advantage  of  his  own 
wrong  and  recover  for  part,  where  tenant  stood  ever  ready  to 
perform  the  entire  contract  on  his  part,  especially  if  the  con- 
tract was  by  indenture.  And  such  seems  now  to  be  the  set- 
tled rule  of  law  both  in  England  and  in  several  of  the  United 
States.*  And  it  may  be  added,  that  the  doctrine  of  appor- 
tionment of  rent  upon  an  eviction  by  a  stranger  applies  as 
well  to  a  partial  deprivation  of  an  easement  to  be  enjoyed 
with  the  leased  premises  as  to  the  loss  of  a  part  of  the  prin- 
cipal premises.^ 

4.  But  nothing  but  a  release,  surrender,  or  eviction,  will 
absolve  a  tenant,  in  whole  or  in  part,  from  the  covenants  in 
his  lease,  and  a  surrender  accepted  will  have  that  effect.^ 
Nor  will  equity  interpose  to  save  a  lessee  from  the  conse- 
quences of  such  covenants  where  there  has  been  no  fraud  or 
mistake  in  drawing  the  lease.'' 

1  Morrison  v.  Chadwick,  7  C.  B.  283,  284 ;  Lawrence  v.  French,  25  Wend. 
443  ;  Lewis  v.  Payn,  4  Wend.  423  ;  Page  v.  Parr,  Styles,  432  ;  Day  v.  Watson,  8 
Mich.  535. 

2  Coming  v.  Gould,  16  Wend.  538;  Cibel  v.  HiJls,  1  Leon.  110. 

3  Lawrence  v.  French,  25  Wend.  443;  Comyn,  Land.  &  Ten.  216,  524;  Dyett 
V.  Pendleton,  8  Cow.  627.  Comyn,  Land.  &  Ten.  525,  seems  to  limit  this  to  cases 
"  where  there  is  no  demise  by  deed."  Li  Shumway  v.  Collins,  6  Gray,  227,  the 
court  waive  the  point. 

4  Upton  V.  Greenlees,  17  C.  B.  30,  65,  66;  Leishman  v.  White,  1  Allen,  489; 
Christopher  v.  Austin,  1  Kern.  215;  Anderson  v.  Chicago  Ins.  Co.,  21  El.  601; 
Fuller  V.  Ruby,  10  Gray,  285. 

5  Blair  v.  Claxton,  18  N.  Y.  529. 

6  Fisher  v.  Millikin,  8  Penn.  St.  Ill ;  Bain  v.  Clark,  10  Johns.  424  ;  Shepard 
V.  Merrill,  2  Johns.  Ch.  276;  Fuller  v.  Ruby,  10  Gray,  290;  Dyer  v.  Wightman. 
66  Penn.  St.  427. 

7  Gates  V.  Green,  4  Paige,  Ch.  355 ;  Sheets  v.  Selden,  7  WaU.  424. 


CH.  X.  §  6.]  ESTATES   FOR   YEARS.  535 

5.  It  has,  accordingly,  been  held  that  the  destruction  of 
the  premises  demised,  or  their  becoming  untenantable,  from 
any  cause,  without  lessor's  fault,  does  not  relieve  the  lessee 
from  his  covenant  to  pay  rent,  or  to  repair,  or  to  restore  the 
premises  at  the  end  of  his  term  in  good  condition.  Nor  does 
it  furnish  any  defence,  either  in  full  or  pro  tanto,  against  a 
lessor's  claim  under  these  covenants,  unless  there  are 
exceptions  to  that  effect  *  in  the  lease. ^  By  a  statute  [*346] 
in  New  York  of  1860,  if  leased  premises  are  destroyed, 
the  lessee  is  not  bound  to  pay  rent  therefor  afterwards,  unless 
such  is  the  express  agreement  of  the  parties.  And  it  would 
be  held  to  be  so,  if  the  lessee  covenants  to  pay  rent  for  the 
term,  and  makes  no  exception  for  the  contingency  of  the 
premises  being  destroyed.^  This  rests  upon  the  ground  that 
the  lessee,  in  such  cases,  is  the  purchaser  and  owner  of  the 
premises  for  the  term  and  price  agreed  upon  in  the  lease,^ 
and  therefore  exempt  from  pajdng  this  price,  though  the 
premises  are  destroj^ed  during  the  term  by  tempest,*  or  fire,^ 
the  loss,  to  that  extent,  being  his,  and  not  the  lessor's.  But 
under  the  civil  code  of  Louisiana,  where  a  tenement  was  ren- 
dered untenantable  by  the  owner  of  an  adjacent  parcel  taking 
down,  as  he  had  a  right  to  do,  an  adjoining  party  wall,  the 

1  Phillips  V.  Stevens,  16  Mass.  238 ;  Warner  v.  Hitchins,  5  Barb.  666  ;  Nave 
V.  Berry,  22  Ala.  382 ;  Niedelet  v.  Wales,  16  Mo.  214  ;  Hallet  v.  Wylie,  3  Johns. 
44;  Chfeord  v.  Watts,  L.  R.  5  C.  P.  586;  Fowler  v.  Bott,  6  Mass.  63 ;  White  v. 
Molyneaux,  2  Ga.  124;  Ward  v.  Bull,  1  Fla.  271;  Howard  v.  Doolittle,  3  Duer, 
464  ;  Wood  v.  Hubbell,  5  Barb.  601 ;  Davis  v.  Smith,  15  Mo.  467  ;  Hill  v.  Wood- 
man, 14  Me.  38 ;  Linn  v.  Ross,  10  Ohio,  412.  See  post,  §  10  ;  Graves  v.  Berdan, 
29  Barb.  100;  Welles  v.  Castles,  3  Gray,  325.  The  case  of  lease  of  a  single 
room  destroyed  with  the  building.  Ross  v.  Overton,  3  Call,  268,  where  tenant 
of  a  mill  covenanted  to  leave  it  in  repair,  and  it  was  carried  off  by  ice,  he  was 
bound  to  pay  rent  and  to  perform  his  covenants.  Hare  v.  Groves,  3  Anstr.  687 ; 
Holtzapffel  v.  Baker,  18  Ves.  115;  Kramer  v.  Cook,  7  Gray,  550,  where  the  wall 
of  the  leased  building  fell  by  the  undermining  of  the  neighboring  proprietor,  the 
lessor  having  neglected  to  support  the  wall.  Sudgen's  Letters,  119  ;  Story,  Eq. 
Jur.  §  101 ;  Paradine  v.  Jane,  Aleyn,  27,  in  which  the  distinction  in  the  effect  of 
inevitable  accident,  upon  a  duty  assumed  by  contract  and  one  imposed  by  law, 
is  explained. 

2  Graves  v.  Berdan,  26  N.  Y.  502.  See  Stow  v.  Russell,  36  111.  35;  Leavett 
V.  Fletcher,  10  Allen,  121. 

8  Kellenberger  v.  Foresman,  13  Ind.  475. 
*  Peterson  v.  Edmonson,  5  Harring.  378. 
6  Beach  v.  Farish,  4  Cal.  339 ;  Dyer  v.  Wightman,  66  Penn.  St.  427. 


536  LAW  OF  REAL  PROPERTY.  [bOOK  L 

tenant  might  quit  the  premises,  and  thereby  absolve  himself 
from  the  payment  of  rent.^  So  where  the  covenant  was  to 
surrender  up  the  premises  at  the  end  of  the  term  in  good  or- 
der and  condition,  it  was  held  that  the  lessee  must  make  the 
necessary  repairs  during  the  term.^  And  an  obligation  "  to 
repau- and  deliver  up  "  would  require  the  tenant  to  rebuild, 
in  case  of  a  loss  by  fire,  during  the  term.  But  if  "  to  deliver 
up  "  alone,  or  "  to  restore  "  the  premises,  it  imposes  nothing 
bej'ond  his  not  holding  over.^ 

6.  The  law,  however,  does  not  seem  to  be  uniform  among 
the  States,  and  hardly  in  the  same  State,  in  some  instances, 
in  respect  to  the  effect  of  an  accidental  destruction  of  the 
property  leased,  upon  the  covenants  in  the  lease.  In  Penn- 
sylvania, it  was  held  that  it  would  make  no  difference  with  the 
right  of  the  lessor  to  insist  upon  the  covenant  to  repair,  that 
he  had  had  insurance  against  the  loss  and  recovered  the  same.* 
But  Sir  Edward  Sugden,  in  his  "  Handy  Book,"  &c.  (p.  119), 
says,  "  If  you  (the  lessor)  have  insured,  though  not  bound  to 
do  so,  and  received  the  money,  you  cannot  compel  payment 
of  the  rent,  if  you  decline  to  lay  out  the  money  in  building :  " 
"  unless  the  tenant  is  exempted  by  the  lease  from  making 
good  accidents  by  fire,  he  must,  under  the  common  covenants 
to  repair,  rebuild  the  house,  if  it  is  burned  down."  But  so 
far  as  Sir  Edward  Sugden  expresses  the  opinion  that 
[*347]  the  lessor  would  be  bound  to  *  apply  the  insurance 
money  in  rebuilding,  he  seems  to  have  relied  upon  the 
case  cited,^  and  is  opposed  by  the  cases  cited  below.  The 
effect  of  these  cases  is,  that  the  covenant  to  pay  rent  is  wholly 
unaffected  by  any  other  covenant  not  expressly  connected  with 
it  in  the  lease,  and  that  the  lessor's  insurance  does  not  con- 
cern the  lessee  at  all.^     The  tenant  has  no  right  in  equity  to 

1  Coleman  v.  Haight,  14  La.  An.  564. 

2  1  Greenl.  Ev.  233,  n. ;  Jaques  v.  Gould,  4  Cush.  384. 

3  Nave  V.  Berry,  22  Ala.  382  ;  Maggort  v.  Hansbarger,  8  Leigh,  536 ;  Bullock 
V.  Dommitt,  6  T.  R.  650. 

*  Magaw  V.  Lambert,  8  Penn.  St.  444.  ^  Brown  v.  Quilter,  Amb.  619. 

6  See  the  remarks  of  the  Chief  Baron  on  Brown  v.  Quilter,  in  Hare  v.  Groves,  3 
Anst.  692 ;  Leeds  v.  Chatham,  1  Simons,  Ch.  146,  that  one  party  to  a  lease  has 
nothing  to  do  with  an  insurance  effected  by  the  other  party  on  his  own  account, 
or  to  resort  to  that  for  any  redress  for  his  loss.     Belfour  v.  Weston,  1  T.  R.  312, 


CH.  X.  §  6.]  ESTATES   FOR   YEARS.  537 

have  the  insurance  money  applied  in  rebuilding  the  premises, 
nor  to  restrain  the  lessor  from  suing  for  the  rent  until  the 
structure  is  restored.^  But  it  was  held  by  the  courts  of  Ohio, 
that  where  a  lessee  covenanted  to  insure  the  premises  de- 
mised, if  it  was  for  the  benefit  of  the  lessor  alone,  the  money, 
in  case  of  loss  being  to  go  to  him,  it  would  be  a  collateral 
covenant,  and  would  not  run  with  the  land  to  bind  an  assignee. 
But  if  the  money  was  to  be  applied  to  repair  or  rebuild,  then 
it  was  in  its  character  like  a  covenant  to  repair,  which  may 
run  with  the  land.^  In  South  Carolina,  where  a  house  that 
was  rented  was  partially  destroyed  by  a  temi^est,  it  was  held 
that  the  lessor  was  only  entitled  to  rent  so  long  as  the  prem- 
ises were  habitable,^  while  in  Pennsylvania,  where  the  lessee 
of  a  house  covenanted  to  pay  rent  and  return  the  premises  in 
good  condition,  and  the  house  was  destroyed  by  a  public  ene- 
my, the  court  held  the  lessee  bound  to  pay  rent,  but  exoner- 
ated from  his  covenant  to  repair,  "  because  equality/  is  equity 
and  the  loss  sJiould  be  divided!''^  certainly  not  a  very  definite 
rule  in  construing  and  applying  the  law  of  express  covenants.^ 
But  the  language  of  the  court  of  that  State  now  is,  "  If  the 
premises  have  been  wrongfully  entered  by  a  disseisor,  and 
the  tenant  be  dispossessed  for  the  entire  term,  or  even  by  the 
military  force  of  a  public  enemy,  or  if  they  have  been  de- 
stroyed or  rendered  untenantable  by  earthquake,  lightning, 
flood,  or  fire,  and  thus  all  enjoyment  by  the  tenant  be  en- 
tirely lost,  yet  his  covenant  remains."  ^  In  another  case  the 
court  refused  to  have  an  abatement  of  rent  of  a  farm  made, 
although  a  bridge  thereon,  which  was  important  to  its  enjoy- 
ment, was  destroj^ed  by  a  flood.^ 

7.  Without  an  express  covenant  to  that  effect  on  the  part 
of  the  lessor,  he  cannot  be  held  liable  for  repairs  made  by  the 

Lord  Mansfield  says,  "  The  house  being  insured  is  nothing  to  the  tenant."  2 
Piatt,  Leases,  124,  125 ;   Piatt,  Gov.  282. 

1  Pope  V.  Garrard,  39  Ga.  477  ;    Sheets  v.  Sheldon,  7  Wall.  424 ;   MofEatt  v. 
Smith,  4  N.  Y.  126  ;  Bussman  v.  Gunster,  72  Penn.  St.  289. 

2  Masury  v.  Southworth,  9  Ohio  St.  348. 

8  Ripley  V.  Wightman,  4  McCord,  447.  <  Pollard  v.  Shaaffer,  1  Dall.  210. 

6  Dyer  v.  Wiglitman,  66  Penn.  St.  427 ;  Workman  v.  Mifflin,  30  Penn.  St.  369. 
«  Smith  V.  Ankrim,  13  S.  &  R.  39. 


538  LAW  OF  REAL  PROPERTY.  [BOOK  L 

tenant  upon  the  demised  premises.^  Nor  would  he  be  bound 
by  a  parol  promise  to  make  repairs,  if  such  promise  is  founded 
only  ujDon  the  relations  of  landlord  and  tenant.^  Nor  is  he 
bound  to  repair  them  himself,  unless  expressly  made  so  by 
covenant  nor  to  remove  any  nuisance,  miless  caused  by  his 
own  act,  or  he  has  covenanted  to  that  effect.^  And  where 
the  owner  of  a  building  of  three  stories  let  a  room  in  the 
middle  story,  and  covenanted  that  if  the  premises  should  be 
damaged  by  fire  so  as  to  make  them  untenantable  for  more 
than  thirty  days,  the  rent,  at  the  election  of  the  tenant,  should 
cease  ;  the  upper  story  was  in  the  occupation  of  another 
tenant,  and,  while  in  that  condition,  the  roof  accidentally  took 
fire,  and  rendered  the  premises  untenantable.  The  landlord 
began  to  repair  the  roof,  but,  before  it  had  been  finished,  the 
rain  injured  the  tenant's  goods,  and  he  claimed  damages  of  the 
lessor,  but  the  court  held,  that,  though  he  might  have  removed 
from  the  premises  and  ceased  to  pay  rent  until  they  had 
been  repaired,  he  had  no  remedy  against  the  landlord  for  the 
injury  done  his  goods  while  he  kept  them  in  the  building.* 
Among  the  cases  which  might  be  cited  upon  this  point,  a  canal 
company  made  a  lease  of  a  water-power  which  had  been 
created  by  the  construction  of  the  canal.  It  was  held  not  to 
constitute  a  covenant  on  the  part  of  the  lessors  to  keep  the 
canal  in  repair  or  supply  it  with  water.  And  if  the  canal 
was  discontinued,  the  lessee  was  without  remedy.^  So  the 
lease  of  a  water-power  out  of  a  mill-pond  then  existing  was 
not  held  to  constitute  an  obligation  on  the  part  of  the  lessor 
to  keep  the  dam  in  repair.^    And  the  grant  of  a  right  to  take 

1  Weigall  V.  Waters,  6  T.  R.  488 ;  Mumford  v.  Brown,  6  Cow.  475  ;  Belfour 
V.  Weston,  1  T.  R.  312;  City  Council  v.  Moorhead,  2  Rich.  430;  Biddle  v.  Reed, 
33  Ind.  529  ;  Witty  v.  Matthews,  52  N.  Y.  514. 

2  Gill  V.  Middleton,  105  Mass.  478. 

3  Arden  v.  Pullen,  10  M.  &  W.  321 ;  Vai  v.  Weld,  17  Mo.  232 ;  Gilhooly  v. 
Washington,  3  Sandf.  330,  s.  c.  4  Comst.  217 ;  Weigall  v.  Waters,  6  T.  R.  488 ; 
Post  V.  Vetter,  2  E.  D.  Smith,  248;  Welles  v.  Castles,  3  Gray,  325;  Kramer  v. 
Cook,  7  Gray,  553 ;  2  Piatt,  Leases,  183 ;  Libbey  v.  Tolford,  48  Maine,  316 ; 
Moore  v.  Webber,  71  Penn.  St.  429. 

*  Doupe  V.  Genin,  45  N.  Y.  119. 

6  Trustees,  &c.  v.  Brett,  25  Ind.  410 ;  Sheets  v.  Selden,  7  Wall.  423. 

6  Morse  v.  Maddox,  17  Mo.  569. 


CH.  X.  §  6.]  ESTATES    FOR   YEARS.  539 

water  from  a  well  does  not  bind  the  owner  of  the  well  to  re- 
pair it.^  And  it  has  been  accordingly  held,  that  if  a  third  party- 
sustained  damages  by  defect  or  want  of  repair  of  premises  in 
possession  of  a  tenant,  the  law  will  presume  that  the  tenant, 
and  not  the  landlord,  is  responsible  therefor,  though  this  is 
subject  to  be  rebutted  by  evidence.^ 

7  a.  As  a  general  proposition,  the  tenant  of  premises  is  re- 
sponsible to  third  parties  who  may  sustain  injury  by  reason  of 
their  being  defective  and  unsafe.^  This  liability  seems  to 
depend  upon  whether  the  tenant  has  the  entire  control  of  the 
structure  which  causes  the  injury,  or  is  one  of  several  tenants 
having  control  only  of  the  part  he  occupies.  Thus  where 
one  travelling  along  a  street  is  injured  by  falling  ice  or  snow 
from  an  awning  in  front  of  stores,  one  or  more,  in  a  building, 
or  from  the  roof  of  the  building,  if  the  tenant  in  such  cases  has 
the  sole  control  of  the  building,  he  alone  is  liable  to  the  party 
injured.  If  the  owner  has  the  general  charge  of  it,  or  of  the 
roof,  or  occupies  it  in  connection  with  tenants,  he  will  be  liable 
instead  of  the  tenant  who  occupies  a  part  only  of  the  premises.^ 
Another  test  is  this  :  If  the  premises  which  are  out  of  repair 
are  open  to  the  public  for  the  profit  which  may  arise  from 
the  use  of  them,  as  in  the  case  of  a  wharf  belonging  to  an 
individual,  he  is  bound  to  keep  it  safe  for  the  purposes  for 
which  it  has  been  opened,  whoever  is  in  occupation,  though  a 
sub-tenant  would  be  liable  for  an  injury  arising  to  one  using 
it,  from  want  of  repair.  Nor  would  the  owner  be  liable  to 
such  sub-tenant  unless  by  express  agreement.^  And  this 
principle  was  applied  where  a  landlord  leased  premises  in  which 
was  a  boiler  in  the  kitchen,  which  burst  in  consequence  of 
wanting  a  safety  valve,  the  lessee  took  it  as  a  purchaser  would, 
and,  in  the  absence  of  an  agreement  or  fraud,  the  landlord  is 
not  liable  for  the  condition  of  the  premises  leased.^    But  this 

1  Ballard  v.  Butler,  30  Me.  94.  See  Gott  v.  Gandy,  2  E.  &  B.  845  ;  Eljiot  v. 
Aiken,  45  N.  H.  36. 

2  Kastor  v.  Newhouse,  4  E.  D.  Smith,  20 ;  Payne  v.  Rogers,  2  H.  Bl.  349 ; 
Cheetham  v.  Hampson,  4  T.  R.  318. 

8  Bishop  V.  Bedford  Charity,  1  E.  &  Ellis,  697 ;  Fisher  v.  Thirkell,  21  Mich. 
1-25;  Hadley  v.  Taylor,  L.  R.  1  C.  P.  53 ;  Irvine  v.  Wood,  51  N.  Y.  224. 

*  Kirby  v.  Market  Association,  14  Gray,  249 ;  Milford  v.  Holbrook,  9  Allen, 
17 ;  Shipley  v.  Fifty  Associates,  101  Mass.  251 ;  Same  v.  Same,  106  Mass.  200. 
6  Clancy  v.  Byrne,  56  N.  Y.  129.  «  jaffe  v.  Harteau,  56  N.  Y.  401. 


540  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

does  not  extend  to  defects  in  the  highwa}^  in  front  of  premises, 
caused  b}'  the  wrongful  act  of  another,  nor  for  defective  side- 
walks or  flagstones  and  gratings  within  the  limits  of  the 
highway,  where  he  himself  is  not  at  fault.  The  public,  in 
such  case,  is  liable  to  the  party  injured  thereby.^  But  for 
damages  occasioned  by  the  impro2)er  mode  of  doing  the  work, 
as  by  leaving  a  sewer  uncovered  while  being  constructed,  the 
contractor  and  not  the  municipal  corporation  would  be  re- 
sponsible.^ If  one  employ  another  to  do  work  upon  his 
premises  which  necessarily  causes  an  injury  to  another,  such 
as  causing  an  obstruction  to  a  highway,  the  emploj-er  is 
responsible  to  the  party  injured.^  So  where  the  work  caus- 
ing the  injury  has  been  done  by  one  who  was  under  the 
power  and  direction  of  the  owner  who  employed  him,  such 
as  fixing  an  awning  in  front  of  a  store  in  one  case,  or  the 
owner  knew  the  work  to  have  been  insecurely  done,  as  where, 
in  excavating  a  drain,  the  contractor  left  the  gravel  on  the 
side  of  the  drain  in  the  highway,  and  this  was  known  to  the 
employer,  who  neglected  to  have  it  removed,  it  was  held  in 
both  these  cases  that  the  employer  was  liable  to  the  party 
injured.*  But  if  the  injury  results  from  the  tenant's  not 
keeping  in  repair  what  he  is  bound  to  do,  he  would  be  liable. 
So  if,  from  want  of  proper  care  in  respect  to  his  premises,  an- 
other is  injured,  as  by  means  of  a  coal-hole,  or  a  cellar-door 
left  open,  he  would  be  liable.  Thus  where  landlord  leased 
premises  bounding  upon  a  street,  and  the  tenant  covenanted 
to  repair  and  keep  the  premises  in  repair,  and  one  passing 
along  the  street  sustained  an  injury  b}^  a  defective  grating 
opening  into  the  street,  but  of  which  defect  neither  the  land- 
lord nor  the  tenant  knew  any  thing,  it  was  held  the  tenant 
was  liable  to  the  party  injured,  by  reason  of  being  in  posses- 
sion of  the  premises,  and  their  being  suffered  to  be  defective.^ 
But  if  the  injury  arise  from  the  erection  of  the  building  itself, 
the  landlord  would  be  liable.^    If  the  tenant  is  responsible  for 

1  Robbins  v.  Jones,  15  C.  B.  n.  s.  221. 

2  Painter  v.  Pittsburg,  46  Penn.  213.  ^  Robbins  v.  Chicago,  4  Wall.  657. 
*  Brackett  v.  Lubke,  4  Allen,  138 ;  Burgess  v.  Gray,  1  M.  G.  &  S.  678. 

5  Gwinnell  v.  Earner,  32  Law  Times  Rep.  n.  s.  835 ;  Prett}'  v.  Bickmore, 
L.  R.  8  C.  P.  401.  See  also  Leonard  v.  Storer,  115  Mass.  86 ;  Cheetham  v.  Hamp- 
Bon  4  T.  R.  318.  ®  Durant  v.  Palmer,  5  Dutch.  545. 


CH.  X,  §  6.]  ESTATES    FOR   YEARS.  541 

that  which  causes  an  injury  to  a  passenger  in  the  highway, 
and  he  recovers  in  an  action  against  the  town  or  city  for  tlie 
damages  thereby  sustained,  the  city  or  town  may  recover  of 
the  tenant  what  they  have  been  obliged  to  pay  in  satisfaction 
of  the  same.^  If  the  builder  of  the  house  cause  an  excavation 
to  be  made  which  endangers  the  passenger,  and  the  tenant 
continues  it  after  he  comes  into  possession,  the  person  injured 
thereby  may  have  his  action  against  either. ^  But  a  landlord 
who  lets  a  house  which  is  out  of  repair  is  not  liable  to  the 
tenant  or  lodgers  therein  for  any  injury  they  sustain  during 
the  term  by  reason  of  such  want  of  repair,  "for  there  is  no 
law  against  letting  a  tumble-down  house."  The  tenant's  only 
remedy,  if  any,  is  upon  his  contract  with  the  lessor.^  And  if 
the  owner  of  land  dedicates  a  way  across  it  to  the  public 
which  is  unsafe,  and  they  accept  it,  the  public,  and  not  he, 
are  responsible  to  any  one  who  is  injured  thereby  while  using 
it.4 

7  h.  There  is  a  class  of  cases  related  to  those  already  con- 
sidered which  deserve  notice  from  the  apparent  diversity  of 
opinion  in  respect  to  them  among  different  courts.  These 
cases  are  where  the  owners  of  land  adjoining  a  street  or  high- 
way excavate  holes  or  ditches  within  their  own  lands,  but  so 
near  the  street  as  to  become  dangerous  to  travellers,  especially 
in  the  night-time,  and  the  question  is  whether  the  land-owner 
is  liable  therefor  to  a  traveller  who  is  thereby  injured. 
The  court  of  Massachusetts,  waiving  the  question  whether 
the  town  or  city  would  be  liable  in  such  a  case,  held  that  the 
owner  of  the  land  was  not  liable,  although  the  excavation  was 
within  "a  foot  or  two"  of  a  public  street."  In  a  recent 
English  case,  the  defendants  were  the  hirers  and  occupants  of 
a  warehouse  which  was  not  yet  completed.  A  "  hoist  hole  " 
was  dug  within  fourteen  inches  of  the  line  of  the  street  which 
was  used  in  erecting  the  warehouse,  but  no  barrier  was  placed 
between  it  and  the  street.  The  plaintiff  sustained  injury  b}' 
falling  into  the  hole  in  the  night-time  when  passing  along  the 

1  lb.  546  ;  Chicago  r.Robbins,  2  Black,  418 ;  Bobbins  v.  Chicago,  4  Wall.  657. 

2  lb.  548 ;  McDonough  v.  Oilman,  3  Allen,  267. 

8  Robbins  v.  Jones,  sup.  *  lb.  291. 
6  Howland  v.  Vincent,  10  Met.  371. 


542  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

street,  and  was  held  to  be  entitled  to  recover  damages,  for  the 
injury  thus  sustained,  of  the  defendants.^  In  another  case, 
the  occupant  of  the  land  dug  out  "  an  area  "  "  near  "  the 
street,  into  which  a  passenger  fell,  there  being  no  barrier 
between  them,  and  he  was  held  liable  for  the  injury  thereby 
sustained.^  But  where  the  vault  into  which  the  plaintiff  fell 
was  upon  a  part  of  the  land-owner's  premises,  across  which  the 
public  often  passed,  but  without  right,  and  the  land-owner  had 
repeatedly  sent  persons  back  who  were  attempting  to  cross, 
it  was  held  that  no  action  would  lie  for  the  injury  sustained 
by  the  plaintiff.^  A  tenant  for  years  is  responsible  for  restor- 
ing what  is  a  nuisance  to  a  right  of  way,  although  it  existed 
when  he  became  such  tenant.  So  he  would  be  for  any  such 
nuisance  created  by  himself.  But  if  existing  at  the  time  of 
his  becoming  tenant,  he  would  not  be  liable  for  continuing 
it  until  after  he  is  notified  that  it  is  a  nuisance.*  But  the 
owner  or  tenant  of  land  is  not  responsible  to  another  who  is 
injured  by  an  act  done  upon  his  land,  where  it  is  done  with- 
out his  agency  or  permission,  as  where  a  third  person,  without 
right,  placed  obstructions  in  a  watercourse  upon  the  land 
through  which  it  flowed,  which  caused  an  injury  to  a  mill- 
owner  below.  The  mill-owner  could  neither  call  upon  the 
land-owner  to  remove  these,  nor  hold  him  responsible  for  their 
being  there.^ 

8.  And  even  where  a  lessee  guards  himself,  as  he 
[*348]  usually  does,  *  against  being  responsible  for  casualties 
occurring  to  the  premises  while  in  his  occupation,  the 
courts  do  not  extend  this  restriction  beyond  the  language  of 
the  lease.  As  where  the  lease  provided  that  the  rent  should 
cease  upon  the  premises  becoming  untenantable  by  fire  or 
other  casualty,  it  was  held  no  defence  that  they  had  become  so 
by  widening  and  altering  the  grade  of  the  street  on  which  they 
stood  by  the  authority  of  the  city.^  Nor  would  the  tenant,  in 
case  of  such  provision,  have  a  right  to  abandon  the  premises, 

1  Hadley  v.  Taylor,  L.  R.  1  C.  P.  53. 

2  Barnes  v.  Ward,  9  M.  G.  &  S.  392.   See  also  Birge  v.  Gardner,  19  Conn.  507. 
8  Stone  V.  Jackson,  16  C.  B.  199. 

*  McDonough  v.  Gilman,  3  Allen,  264. 

8  Saxby  v.  Manchester,  &c.  R.  R.,  88  L.  J.  N.  s.  C.  P.  153. 

6  Mills  V.  Baehr,  24  Wend.  254. 


CH.  X.  §  6.]  ESTATES    FOR    YEARS.  543 

and  put  an  entire  stop  to  the  rent  by  reason  of  a  partial  de- 
struction of  the  premises,  though  it  rendered  such  part  unin- 
habitable until  repaired.^  So  where  the  rent,  or  a  proportionate 
part,  was  to  stop,  if  the  premises  or  any  part  thereof  were  de- 
stroyed or  damaged  by  "  unavoidable  casualty,"  it  was  held 
not  to  extend  to  cases  of  gradual  and  natural  decay.  Nor 
could  the  tenant,  if  he  continued  to  occupy,  refuse  to  pay  the 
rent.2  On  the  other  hand,  where  the  lessee  excepted,  from  his 
covenant  to  keep  the  buildings  in  repair,  such  want  of  repair 
as  arose  from  fire  and  natural  "  wear  and  tear,"  it  was  held 
that  the  latter  clause  was  not  restricted  to  a  gradual  deteriora- 
tion, but  would  extend  to  any  accident  caused  by  a  defect  in 
the  structure,  as  where  a  mill  that  was  leased  fell  from  some 
inherent  defect.^  The  covenant  to  maintain  buildings  in 
repair  upon  leased  premises  is  binding  at  all  times,  and  for  a 
breach  thereof  the  lessor  is  not  bound  to  wait  until  the  expi- 
ration of  the  lease.  He  may  sue  for  the  breaches  as  they  arise 
during  the  term,  after  a  refusal  or  neglect  on  the  part  of  the 
tenant  to  repair  within  a  reasonable  time.*  The  extent  of  the 
repairs  required  of  the  tenant,  as  stated  by  Tenterden,  C.  J., 
is  that  "  a  tenant,  who  covenants  to  repair  is  to  sustain  and 
uphold  the  premises.  But  that  is  not  the  case  with  a  tenant 
from  3^ear  to  year.  He  is  only  bound  to  keep  the  house  wind 
and  water  tight."  ^ 

8  a.  In  the  absence  of  an  express  covenant  to  repair,  the 
tenant  of  buildings  is  not  liable  for  the  accidental  destruction 
thereof  by  fire  ;  and  this  is  the  common  law  of  this  country, 
borrowed  from  the  English  acts  of  6  Anne,  c.  31,  §  67,  and 
14  Geo.  HI.  c.  78.6 

9.  It  has  been  attempted,  at  times,  to  raise  implied  obliga- 
tions between  landlord  and  tenant  regarding  leased  tenements, 
as  to  their  character  or  condition,  or  the  mode  of  using  them, 
as  well  as  what  is  included  in  a  demise  of  them,  from  the  char- 

1  Wall  V.  Hinds,  4  Gray,  256. 

2  Welles  V.  Castles,  3  Gray,  325 ;  Bigelow  v.  CoUamore,  5  Cush.  226. 
8  Hess  V.  Newcomer,  7  Md.  325. 

*  Buck  i;.  Pike,  27  Vt.  529  ;  Corayn,  Land.  &  Ten.  210. 
6  Auworth  V.  Johnson,  5  Car.  &  P.  239. 

6  Wainscott  v.  Silvers,  13  Ind.  497 ;  Lansing  v.  Stone,  37  Barb.  21 ;  2  Piatt, 
Leases,  187. 


544  LAW   OF    REAL   PROPERTY.  [BOOK   L 

acter  of  the  premises,  and  the  purposes  for  which  they  are  in- 
tended to  be  occupied.  Thus  it.  has  been  held  that  where  real 
estate  was  leased,  and  with  it  personal  property,  like  ma- 
chinery, which  was  to  be  used  with  and  by  means  of  the  prem- 
ises leased,  the  lessor  was  thereby  bound  to  do  nothing 
[*349]  to  interrupt  the  *  enjoyment,  by  the  lessee,  of  the  prop- 
ert}^  leased,  for  the  purpose  for  which  the  same  had 
been  usually  occupied  and  employed. ^  So  where  a  factory  is 
leased  with  its  machinery,  it  carries,  by  implication,  a  right  to 
use  the  water-power  of  the  lessor,  belonging  to  the  same,  for 
the  purpose  of  operating  the  mill.^  But  the  lease  of  a  store  or 
warehouse,  or  the  like,  does  not,  ordinarily,  imply  any  warranty 
that  the  building  is  safe,  or  well  built,  or  that  the  premises 
are  fit  for  any  particular  use.^  Or  that  the  premises  are  in  a 
tenantable  condition,  or  that  the  lessor  will  make  repairs.* 
Nor  would  a  lease  of  a  salt-well  be  held  to  be  an  assurance  of 
the  productiveness  or  capacity  of  the  well.^  Nor  is  there  any 
implied  warranty  in  a  sealed  lease  of  a  house  for  a  private  resi- 
dence, that  it  is  reasonably  fit  for  habitation.^  Nor  can  a  lessee, 
in  the  absence  of  fraud  or  misrepresentation  as  to  the  healthi- 
ness of  a  house  leased  to  him,  abandon  the  premises  because 
the  same  are  unhealthy,  and  thereby  avoid  paying  rent.'^  In 
a  case  where  a  "  furnished  house  "  was  rented,  it  was  held  to 
imply  that  it  was  so  far  fit  for  use  that  the  tenant  was  held 
justified  in  quitting  because  infested  with  bugs.  But  the  law 
of  the  case  seems  doubtful,  and  is  confined  strictly  to  cases  of 
houses  furnished.^    Many  of  the  propositions  above  stated,  and 

1  Dexter  v.  Manley,  4  Cush.  14.  ^  "VVyman  v.  Farrar,  35  Me.  64. 

'  Dutton  V.  Gerrish,  9  Cush.  89  ;  Piatt,  Leases,  613.  In  the  case  of  a  lease  of 
the  vesture  of  land  for  depasturing  by  cattle,  it  was  held  that  the  lessee  was 
liable  to  pay  rent,  though  poisonous  substances,  fatal  to  the  cattle  that  fed  there, 
had  been  scattered  on  the  land  by  some  one  not  the  lessor.  Sutton  v.  Temple, 
12  M.  &  W.  52;  O'Brien  v.  Capwell,  59  Barb.  498 ;  Eoyce  v.  Guggenheim,  106 
Mass.  202;  Moore  v.  Webber,  71  Penn.  St.  429;  Arden  v.  Pullen,  10  M.  &  W. 
821 ;  Izon  v.  Gorton,  5  Bing.  N.  C.  501 ;  Taylor,  L.  &  T.  §  381. 

♦  Gill  V.  Middleton,  105  Mass.  478. 

6  Clark  V.  Babcock,  23  Mich.  154,  170. 

6  Foster  v.  Peyser,  9  Cush.  242 ;  Smith,  Land.  &  Ten.  206  ;  Hart  v.  Windsor, 
12  M.  &  W.  68. 

7  Westlake  v.  De  Graw,  25  Wend.  669. 

8  Smith  V.  Marrable,  11  M.  &  W.  58,  Am.  ed.  note.     See  also  Sutton  v.  Tem- 


CH.  X.  §  6.]  ESTATES   FOR   TEARS.  545 

the  cases  referred  to,  were  considered  in  a  recent  case  in  New 
York,  where  the  court  sustain  the  doctrine  as  there  given,  and 
say,  "  The  maxim  of  caveat  emptor  appKes  to  the  contract  of 
hiring  of  real  property,  as  it  does  to  the  transfer  of  all  prop- 
erty, real,  personal,  or  mixed  ;  "  and  in  the  absence  of  fraud  on 
the  part  of  the  lessor,  there  is  no  implied  warranty  that  the 
premises  are  fit  for  the  use  for  which  the  lessee  requires 
them.^ 

10.  And  where  the  premises  were  a  cellar  and  lower  room 
in  a  house  of  several  stories,  and,  during  the  term,  the  house 
was  destroyed  by  fire,  it  was  held  that  the  lessee's  interest  was 
thereby  gone,  and  that  he  could  not  continue  to  occupy  by  cov- 
ering in  the  cellar.^  And  the  same  principle  was  applied 
where  the  lease  was  of  one  of  many  rooms  in  a  building  which 
was  burned  down,  and  the  lessor  rebuilt  daring  the  term  of 
the  hiring,  it  was  held  that  the  lessee's  entire  interest 

was  gone,  and  *  the  lessor  was  under  no  obligation  to  [*350] 
give  him  the  use  of  a  corresponding  room  in  the  new 
building.^  But  in  such  a  case  it  has  been  held  that  the  rent 
of  such  destroyed  premises  ceases  with  their  destruction,  the 
subject-matter  of  the  demise  no  longer  existing.*  In  England, 
however,  where  one  was  a  tenant  from  year  to  year  of  a  sec- 
ond floor  of  a  building  which  was  destroyed  by  fire,  he  was 
held  liable  for  rent  of  the  premises  after  they  were  destroyed 
until  a  regular  determination  of  the  tenancy.^ 

11.  So  in  respect  to  the  leasee,  unless  he  is  restrained  by 
the  terms  of  his  lease,  he  may  make  use  of  the  premises  for 
any  lawful  purposes  he  may  choose,  though  different  from 

pie,  12  M.  &  W.  52,  and  Hart  v.  Windsor,  Id.  68,  overruling  the  cases  on  which 
Smith  V.  Marrable  was  decided.  Smith,  Land.  &  Ten.  206,  n. ;  Taylor,  L.  &  T. 
§381. 

1  McGlaslian  v.  Tallmadge,  37  Barb.  313.  See  Hazlett  v.  Powell,  .30  Penn. 
St.  293 ;  Mayer  v.  MoUer,  1  Hilton,  491 ;  Academy  of  Music  v.  Hackett,  2  Hil- 
ton, 219,  235 ;  Welles  v.  Castles,  3  Gray,  326 ;  Libbey  v.  Tolford,  48  Me.  316 ; 
Elliot  V.  Aiken,  45  N.  H.  36;  Gott  v.  Gandy,  2  E.  &  B.  845  and  note;  Cleves  v. 
Willongliby,  7  Hill,  83. 

2  Winton  v.  Cornish,  5  Ohio,  477. 

3  Stockwell  V.  Hunter,  11  Met.  448;  Alexander  v.  Dorsey,  12  Ga.  12. 

*  Graves  v.  Berdan,  29  Barb.  100;  Graves  v.  Berdan,  26  N.  Y.  498 ;  Doupe 
V.  Genin,  45  N.  Y.  123. 

5  Izon  V.  Gorton,  5  Bing.  N.  C.  501.     See  also  Graves  v.  Berdan,  26  N.  Y.  503. 
VOL.  1.  35 


546  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

those  for  which  they  were  designed,  if  not  materially  and 
essentially  affecting  the  condition  of  the  same.  As  where  one 
hired  a  house  erected  for  the  purposes  of  a  hotel,  but  made  no 
covenant  in  respect  to  the  mode  of  its  occupancy,  and  con- 
verted it  into  a  public  seminary,  it  was  held  that  the  lessor 
could  not  object  to  that  use  of  the  premises.^ 

12.  But  where  the  mode  of  occupation  is  fixed  by  the  lease, 
not  only  may  the  tenant  be  enjoined  from  converting  the  estate 
to  other  purposes,^  but,  in  some  cases,  his  so  doing  has  been 
held  to  work  a  forfeiture  for  which  the  lessor  might  enter  and 
expel  him  ;  ^  as  where  a  shop  was  let  for  a  regular  dry-goods 
jobbing  business,  and  the  tenant  undertook  to  use  it  as  an  auc- 
tion-room, though  no  special  damage  could  be  shown  to  accrue 
from  such  a  use.'*  If  premises  are  let  for  unlawful  purposes, 
such  for  instance  as  the  unlawful  sale  of  spirituous  liquors,  the 
lessor  cannot  recover  rent  therefor ;  the  lessee's  covenant  to  pay 
it  would  be  void.* 


SECTION   VII. 

OF    SURKENDER,  MERGER,   ETC. 

1.  What  is  a  surrender. 

2.  How  it  may  be  done  under  statute. 

3.  Rights  of  third  parties  not  to  be  affected. 

4.  Wliat  amounts  to  a  surrender. 

5.  Written  lease  surrendered  by  parol. 

6.  Lease  affected  by  surrendering  possession. 

7.  Of  merger. 

8.  Merger  of  a  term  of  years  in  a  freehold. 

9.  Merger  of  a  term  of  years  in  the  reversion. 

10.  No  merger  in  case  of  a  remainder. 

11.  To  merge,  estates  must  be  held  in  same  right. 

1.  If  a  tenant  for  life  or  years  yields  up  his  estate  to  him 
who  has  the  immediate  estate  in  reversion  or  remainder,  it  is 

1  Nave  V.  Berry,  22  Ala.  382. 

2  Howard  v.  Ellis,  4  Sandf.  349 ;  Maddox  v.  Wliite,  4  Md.  72. 
8  Shepherd  v.  Briggs,  26  Vt.  149. 

*  Steward  v.  Winters,  4  Sandf.  Ch.  587. 
6  Sherman  v.  Wilder,  106  Mass.  537. 


CH.  X.  §  7.]  ESTATES    FOR   YEARS.  547 

called  by  the  law  a  surrender^  the  effect  of  which  is  to  extin- 
guish all  claim  for  rent  not  clue  at  the  time.     The  es- 
tate for  3'ears,  in  *  such  case,  is  "  drowned  by  mutual  [*351] 
agreement  between  them."  ^     But  if  an  estate,  how- 
ever brief,  intervenes  between  the  two  estates,  there  cannot 
be  a  technical  surrender  or  a  merger  thereof.^ 

2.  To  do  this  requires,  under  the  statute  of  frauds,  a  deed 
or  note  in  writing,  or  some  act  to  which  the  law  gives  that 
effect.^  A  parol  surrender  of  a  lease  is  of  no  validity,  nor  is 
evidence  of  such  surrender  competent.*  Nor  would  it  make 
any  difference  if,  when  the  written  lease  was  made,  it  had  been 
orally  agreed  by  the  lessor  that  the  lessee  might  surrender  his 
lease  at  any  time  he  might  choose.^  Nor  would  the  cancelling 
of  the  lease  revest  the  estate  in  the  lessor,  or  operate  as  a  bar 
to  the  recover}^  of  rent  by  the  holder  of  the  reversion.^  And 
by  the  Stat.  8  and  9  Vict.  c.  106,  §  3,  it  can  only  be  done,  if 
in  writing,  by  deed.  But  if  the  lease  do  not  exceed  the  term 
for  which  a  parol  lease  would  be  good,  there  may  be  a  parol 
surrender  of  the  same.'^ 

3.  It  is  not,  however,  competent  for  the  lessor  and  lessee  to 
affect  the  rights  of  third  parties  by  a  formal  surrender  of  the 
lease,  as,  for  instance,  those  of  the  lessee's  sub-tenant.^ 

4.  Questions  of  considerable  difficulty  have  arisen,  at  times, 
as  to  what  will,  in  law,  amount  to  a  surrender  of  the  lease.  It 
has  been  held  that  if  lessee  of  a  term  takes  a  new  lease  of  the 
same  premises,  to  take  effect  before  the  expiration  of  such  term, 
it  works  a  surrender  of  the  first,  on  account  of  the  incompati- 
bility of  the  two  leases,  both  of  which  cannot  be  valid  at  the 
same  time,  unless  there  are  facts  in  the  case  clearly  rebutting 

1  Co.  Lit.  338  a;  Smith,  Land.  &  Ten.  223;  Greider's  Appeal,  5  Penn.  St. 
422  ;  Curtis  v.  Miller,  17  Barb.  477  ;  Bailey  v.  Wells,  8  Wis.  158. 

2  Burton  v.  Barclay,  7  Bing.  745. 

3  Hesseltine  v.  Seavey,  16  Me.  212 ;  Smith,  Land.  &  Ten.  224 ;  Farmer  v. 
Rogers,  2  Wils.  26;  Allen  v.  Jaqnisli,  21  Wend.  628;  .Lickson  v.  Gardner,  8 
Johns.  404. 

4  Bailey  v.  Wells,  8  Wis.  141.  &  Brady  v.  Peiper,  1  Hilton,  61. 
<»  Ward  V.  Liimley,  5  H.  &  Norm   88-94,  and  note  to  Am.  ed. 

7  Kiester  v.  Miller,  25  Penn.  St.  481  ;  M'Kinney  v.  Reader,  7  Watts,  123. 

8  McKenzie  v.  Lexington,  4  Dana,  129  ;  Smith,  Land.  &  Ten.  231 ;  Piggott  v. 
Stratton,  Jolins.  Cli.  Cas.  355;   Adams  v.  Goddard,  48  Me.  212,  215. 


548  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

such  inference.^  It  must  be  made  clearly  to  appear,  in  the 
absence  of  any  deed  or  written  instrument,  that  it  was  the 
intention  of  the  parties  to  create  a  new  lease  of  the  premises, 
and  substitute  a  new  and  different  estate  from  that  granted  by 
the  original  lease.^  So  where  the  lessee  leased  the  demised 
premises  to  his  lessor,  the  owner  of  the  immediate  reversion 
in  fee,  by  an  instrument  like  that  by  which  he  became  lessee, 
it  was  held  to  be  a  surrender  by  the  lessee  and  a  merger  in  the 
lessor.^    But  where  the  first  lease  was  from  two,  and  the  lease 

back  again  was  to  one  only,  it  did  not  operate  as  a 
[*352]  surrender.*     Nor,  *  where  the  original  lease  was  by 

one  lessor  to  several  lessees,  can  one  of  these  lessees 
affect  the  rights  of  his  co-lessees  by  releasing  or  conveying 
to  his  lessor.^ 

5.  Questions  of  more  difficulty  have  arisen  whether  a  sealed 
lease  for  a  term  can  be  surrendered  by  substituting  a  new  parol 
one.  And  although  the  point  does  not  seem  to  have  been 
taken  in  the  cases  which  have  involved  this  question,  it  would 
seem  to  dejDcnd  upon  whether  the  new  parol  lease  was  binding 
within  the  statute  of  frauds,  as  in  England  and  some  of  the 
States  it  may  be,  if  not  exceeding  a  certain  length  of  time,  and 
followed  by  possession  under  it.  In  such  case,  consistently 
with  the  cases  above  cited,  taking  a  new  parol  lease  would 
seem  to  be  a  surrender  in  law  of  the  existing  one  under  seal. 
In  Thomas  v.  Cook,  the  first  lessee  was  tenant  from  year  to 
3'ear,  and  the  lessor  accepted  the  assignee  of  his  tenant  by  dis- 
training his  goods  for  rent  due,  and  it  was  held  to  be  a  surren- 
der of  the  first  letting  by  act  of  law.^  So  in  Smith  v.  Niver, 
a  parol  lease  for  a  year  was  substituted  for  a  written  one. 
The  court  held  the  parol  lease  valid  and  binding,  "  being  for 
a  term  not  embraced  within  the  provisions  of  the  statute 

1  Burton,  Real  Prop.  §  90i ;  Wms.  Real  Prop.  337 ;  Smith,  Land.  &  Ten. 
225-330,  n. ;  Mellow  v.  May,  Moore,  636;  Van  Rensselaer  v.  Penniman,  6  Wend. 
569;  Livingston  v.  Potts,  16  Johns.  28;  Co.  Lit.  338  a;  McDonnell  v.  Pope,  9 
Hare,  705;  Lyon  v.  Reed,  13  M.  &  W.  304-306;  Roe  v.  York,  6  East,  86;  Bailey 
V.  Wells,  sup. 

2  Brewer  v.  Dyer,  7  Cush.  339.  3  Shepard  v.  Spaulding,  4  Met.  416. 
*  Sperry  v.  Sperry,  8  N.  H.  477.  ^  Baker  v.  Pratt,  15  111.  568. 

e  Thomas  v.  Cook,  2  B.  &  Aid.  119.  See  M'Donnell  v.  Pope,  9  Hare,  706. 
See  also  Davison  v.  Gent,  38  E.  L.  &.  Eq.  469. 


CH.  X.  §  7.]  ESTATES   FOR   YEARS.  549 

requiring  agreements  of  this  description  to  be  in  writing."  ^ 
But  where  the  lessee  expressed  a  wish  to  the  lessor  to  substi- 
tute a  third  person  as  tenant,  who  was  present  at  the  time, 
and  the  lessor  said,  if  the  rent  was  paid  it  would  all  be  right, 
but  the  lease  was  not  cancelled,  it  was  held  not  to  be  a  sur- 
render accepted  on  the  part  of  the  lessor.^  In  some  cases 
where  the  lessee  has  assigned  his  lease  or  underlet  to  another, 
for  his  entire  term,  in  writing,  and  the  original  lessor  has  orally 
assented  to  the  same,  and  has  accepted  rent  from  the  assignee, 
it  has  been  held  to  operate  as  a  surrender  of  the  original  lease, 
land  a  substitution  of  a  new  tenancy.^  But  it  is  difficult  to  see 
upon  what  legal  ground  such  oral  assent  can  be  held  to  be  a 
bar  to  an  action  upon  the  lessee's  express  covenant  to  pay 
rent.*  And  the  following  case  seems  to  recognize  this  distinc- 
tion, the  parol  agreement  of  the  parties  being  followed  by  acts 
done  towards  carrying  this  agreement  into  practical  effect. 
The  lessee  of  a  term  of  ten  years  assigned  it  by  the  parol  assent 
of  the  lessor,  who  agreed  to  look  to  the  assignee  for  the  rent, 
and  to  accept  him  as  his  tenant,  and  that  the  lessee  should  be 
discharged.  It  was  held  to  be  a  surrender  so  far  as  the  lessee 
was  concerned,  and  to  discharge  him  from  his  obligations  as 
such.  But  the  circumstance  of  accepting  rent  from  the 
assignee  of  the  lessee  does  not  discharge  him  ;  it  is  merely 
accepting  payment  through  the  hands  of  another.^ 

6.  So  where,  before  the  expiration  of  a  lease  under  seal,  the 
lessee  actually  surrendered  possession  of  the  premises 
to  his  *  lessor,  who  accepted  the  same  and  leased  them  [*353] 
to  another,  it  was  held  to  be,  in  effect,  a  surrender.^ 
Any  acts  which  are  equivalent  to  an  agreement  on  the  part  of 
a  tenant  to  abandon,  and  on  the  part  of  the  landlord  to  re- 
sume possession  of  the  demised  premises,  amount  to  a  surren- 

1  Smith  V.  Niver,  2  Barb.  180 ;  Bedford  o.  Terhune,  30  N.  Y.  4G3. 

2  Whitney  v.  Myers,  1  Duer,  266. 

8  Logan  V.  Anderson,  2  Doug.  (Mich.)  101 ;  Bailey  v.  Delaplaine,  1  Sandf.  5. 
•  4  See  Brewer  v.  Dyer,  7  Cush.  337. 

8  Levering  v.  Langley,  8  Min.  107. 

6  Dodd  V.  Acklom,  6  Mann.  &  G.  673;  Grimman  v.  Legge,  8  B.  &  C.  324; 
Hegeman  v.  McArthur,  1  E.  D.  Smith,  147 ;  Walker  v.  Richardson,  2  M.  «&  W. 
891;  Randall  v.  Rich,  11  Mass.  494;  Hesseltine  v.  Seavey,  IC  Me.  212,  See 
Brady  v.  Pciper,  1  Hilton,  61 ;  Brewer  v.  Dyer,  7  Cush.  337. 


550  LAW   OF  REAL   PROPERTY.  [bOOK   I. 

der  of  the  term  by  operation  of  law.^  But  abandoning 
possession  even  with  notice,  unless  accepted  by  the  landlord, 
would  not  have  that  effect.  The  surrender,  to  be  of  any 
effect  in  barring  a  claim  for  rent,  must  be  with  the  as- 
sent of  the  lessor.^  So  where  lessor  and  lessee,  b}'  mu- 
tual consent,  destroyed  the  lease  for  the  purpose  of  making 
a  new  one,  it  was  held  to  have  that  effect.^  But  to  have 
such  an  act  of  the  parties  amount  to  a  legal  surrender, 
without  any  writing  to  that  effect,  it  is  necessary  that  there 
should  be  an  actual  surrendering  up  b}^  the  tenant  of  the 
possession  of  the  premises,  and  an  acceptance  of  such  posses- 
sion by  the  lessor,  such  as  receiving  the  key  of  the  house,  or 
actually  going  into  occupation,  or  putting  some  other  tenant 
in,  or,  as  stated  in  one  of  the  cases  cited  above,  accepting  the 
tenant  of  the  lessee  as  his  own  tenant,  and  receiving  rent 
from  him.*  The  cases  upon  this  point  are  numerous  and  often 
difficult  to  reconcile,  each  depending  upon  the  peculiar  cir- 
cumstances upon  which  the  decision  turned.  But  it  may  be 
assumed  that  there  must  be  a  mutual  agreement  between  the 
lessor  and  original  lessee,  that  the  lease  is  terminated,  in  order 
to  work  a  surrender.  But  this  may  be  implied,  and  need  not 
always  be  express.  It  is  enough  that  it  is  proved,  and,  when 
made,  the  original  lessee  is  no  longer  liable,  and  the  new  ten- 
ant, if  there  be  one,  is  alone  responsible.^  Thus,  for  example, 
if  the  tenant  actually  surrenders  up  to  the  lessor  the  possession 
of  the  premises,  and  he  accepts  it  and  retains  it  by  going  into 
occupation  of  them,  it  will  be  a  surrender,  and  put  an  end  to 
tiie  tenant's  further  liability  upon  his  covenants.  And  the 
return  and  acceptance  of  the  key  of  the  premises  may  be  evi- 
dence of  such  surrender  of  possession.^  But  merely  entering 
upon  leased  premises,  and  using  them  without  any  consent  of 

1  Talbot  V.  Whipple,  14  Allen,  180.  2  Stobie  v.  Dills,  62  111.  432. 

8  Baker  v.  Pratt,  15  111.  568. 

4  Hegeman  v.  McArthur,  1  E.  D.  Smith  (15  N.  Y.),  149;  Dodd  v.  Acklora,  6 
Mann.  &  G.  673 ;  Grimman  v.  Legge,  8  B.  &  C.  324;  Thomas  v.  Cook,  2  B.  & 
Aid.  119. 

5  Bedford  v.  Terhune,  30  N.  Y.  462-464. 

6  Elliott  V.  Aiken,  45  N.  H.  36;  Whitehead  v.  Clifford,  5  Taunt.  518;  Phene' 
V.  Popplewell,  12  C.  B.  n.  s.  834;  Mollett  v.  Brayne,  2  Camp.  103;  Matthews  v. 
Taberner,  39  Mo.  115,  119.  See  note  to  Am.  ed.  12  C.  B.  n.  s.  343,  and  cases 
collated. 


CH.  X.  §  7.]  ESTATES    FOR   YEARS.  551 

the  tenant,  does  not  work  a  surrender,  though  he  may  have 
quit  possession  of  them.  It  may  prevent  his  claiming  rent  of 
the  tenant,  but  that  would  depend  upon  the  nature  and  extent 
of  such  use.^  But  where  it  was  agreed  between  the  lessor's 
agent  and  the  lessee  that  the  latter  should  surrender  the  prem- 
ises, and  he  accordingly  did  so  by  delivering  up  his  part  of  the 
lease  with  the  key  of  the  premises  to  the  agent,  and  the  lessor 
entered  upon  the  premises  and  let  them  to  another,  it  was  held, 
that  though  it  was  not  a  technical  su7-render,  not  having  been 
in  writing,  a  court  of  equity  would  enjoin  the  prosecution  of  a 
suit  for  rent  after  such  a  transaction.^  Merely  accepting,  with- 
out objection,  notice  that  the  tenant  is  going  to  quit  at  a  future 
time,  though  followed  by  an  abandonment  of  the  premises  or 
the  cancelling  of  the  lease,  unless  the  premises  are  taken  pos- 
session of  by  the  lessor,  would  not  amount  to  a  surrender.^ 
But  where  the  lease  stipulated  for  the  payment  of  rent  quar- 
terly, with  a  proviso,  that,  if  not  paid  when  due,  the  lessor 
might  enter  and  take  possession,  and  the  lessor  notified  the 
tenant  that  held  under  the  lessee,  that  unless  he  paid  the  rent 
of  the  current  quarter,  which  had  in  fact  been  paid,  he  must 
quit,  and  the  tenant  accordingly  abandoned  the  premises,  it 
was  held  to  be  a  surrender,  and  the  lessee  was  thereby  dis- 
charged from  liability  to  pay  rent.*  In  some  cases  it  has  been 
held  that  if  the  tenant  abandons  the  premises,  especially  if  he 
has  absconded,  and  the  landlord  enters  upon  and  occupies  or 
lets  them  to  another,  it  will  operate  as  a  surrender,  putting  an 
end  to  the  relation  of  landlord  and  tenant,  and  any  right  and 
liability  on  account  of  rent.^  Other  cases  might  be  mentioned 
where  the  taking  possession  by  the  landlord  with  the  acquies- 
cence or  assent  of  the  tenant,  where  the  premises  were  de- 
serted or  vacant,  has  been  held  to  be  a  surrender  in  law.  In 
one  of  these  the  house  was  burned,  and  the  tenant  remained 
liable  to  pay  rent  by  his  covenant.     Instead  of  exacting  this, 


1  Griffith  V.  Hodges,  1  C.  &  P.  419.  2  Stotesbury  v.  Vail,  13  N.  J.  390. 

3  Johnstone  v.  Huddlestone,  4  B.  &  C.  922 ;  Schieffelin  v.  Carpenter,  15  Wend. 
400 ;  Walker  v.  Richardson,  2  M.  &  W.  893,  per  Bolland,  B. ;  Jackson  v.  Gard- 
ner,  8  Johns.  404. 

*  Patchin  v.  Dickerman,  31  Vt.  666. 

5  Schuisler  v.  Ames,  16  Ala.  73;  M'Kinney  v.  Reader,  7  Watts,  123. 


552  LAW  OF  REAL  PROPERTY.  [BOOK  L 

the  tenant  having  neglected  to  rebuild,  the  landlord 
[*354J   went  on  *  without  objection  by  the  tenant,  and  rebuilt, 

and  it  was  held  to  be  a  complete  defence  to  an  action 
brought  by  the  tenant  to  regain  his  possession.^  In  one  case 
it  was  held  that  an  agreement  in  writing  not  under  seal,  to 
surrender  an  existing  lease  for  years  which  was  under  seal, 
upon  failure  to  perform  certain  stipulations,  might  be  valid  as 
a  contingent  surrender,  and  that  a  surrender  of  a  term  to 
operate  infuturo  would  be  good.^  It  would  swell  this  work 
bej'ond  its  proposed  limits  to  pursue  this  subject  further.  The 
reader  will  find  a  summary  of  the  law  in  the  following  lan- 
guage of  Parke,  B.,  in  Lyon  v.  Reed:  "We  must  consider 
what  is  meant  by  a  surrender  by  operation  of  law.  This 
term  is  applied  to  cases  where  the  owner  of  a  particular  estate 
has  been  a  party  to  some  act,  the  validity  of  which  he  is,  by 
law,  afterwards  estopped  from  disputing,  and  which  would 
not  be  valid  if  his  particular  estate  had  continued  to  exist. 
There  the  law  treats  the  doing  of  such  act  as  amounting  to  a 
surrender."  "  In  such  case,  it  will  be  observed,  there  can  be 
no  question  of  intention.  The  surrender  is  not  the  result  of 
intention.  It  takes  place  independentl}^  and  even  in  spite 
of  intention."  2 

7.  Closely  allied  to  the  doctrine  of  surrender  is  that  of  Mer- 
ger, as  applied  to  leases.  Without  attempting  to  embrace  the 
whole  subject,  it  may  be  stated,  generally,  that  where  a  term 
for  years  and  the  immediate  reversion  of  the  same  estate  meet 
in  one  and  the  same  person,  in  his  own  right,  either  by  his 
own  act  or  by  act  of  the  law,  so  that  he  has  the  full  power 
of  alienation  of  both  estates,  they  will  merge."^  Thus  a  re- 
convej'ance  of  an  entire  leasehold  estate  to  the  lessor  by 
sundry  mesne  conveyances  merges  the  term  in  the  fee,  though 
in  each  of  the  transfers  of  the  estate  a  rent  was  reserved, 
together  with  a  right  of  entry  for  a  breach  of  covenant.^ 

1  Pindar  v.  Ainsly,  cited  by  Bullei ,  J.,  in  Belfour  v.  Weston,  1  T.  R.  312; 
Cline  V.  Black,  4  McCord,  431 ;  Wood  v.  Walbridge,  19  Barb.  136. 

-  Allen  V.  Jaquish,  21  Wend.  628.     See  Roe  v.  York,  5  East,  86. 

8  Lyon  V.  Reed,  13  M.  &  W.  300.  But  see  Van  Rensselaer  v.  Freeman,  6 
Wend.  569.  As  to  what  such  estoppel  is,  see  Nickells  v.  Atherstone,  10  Q.  B. 
944.     See  note  to  Am.  ed.  12  C.  B.  n.  s.  343 ;  Bedford  v.  Terhune,  30  N.  Y.  463. 

*  Burton,  Real  Prop.  §§  8',t7,  899 ;  1  Cruise,  Dig.  239 ;  3  Prest.  Conv.  201. 

6  Smiley  v.  Van  Winkle,  6  Cai.  605. 


CH.  X.  §  7.]  ESTATES    FOR    YEARS.  553 

And  if  the  purchaser  of  an  estate  purchase  in  a  ground  rent 
which  is  payable  out  of  the  estate,  such  a  union  of  the  two 
would  merge  the  rent,  unless  the  title  to  the  estate  should  fail, 
in  which  case  the  rent  would  revive.^  But  an  intervening 
outstanding  term  for  years  in  another  person  will  prevent 
their  merging.^ 

8.  Where  the  reversion  is  a  freehold  estate,  it  is  not  diffi- 
cult to  understand  how  this  may  happen,  however  long  the 
term  may  he,  from  the  nature  of  freehold  and  chattel 
interests  *  as  originally  understood,  the  former  being  [*355] 
of  so  much  higher  consideration  in  the  eye  of  the  law 

than  the  latter.  As  where  A  was  tenant  for  one  thousand 
years,  with  a  reversion  in  B  for  life,  and  A  surrendered  his 
term  to  B,  it  merged  in  the  freehold  of  B,  and  was  gone  for- 
ever, and  B  would,  after  such  surrender,  have  only  an  estate 
for  his  own  life.^ 

9.  But  when  this  comes  to  be  applied  to  terms  and  rever- 
sions, where  they  are  both  for  years,  and  the  reader  is  told 
that  if  the  immediate  term  be  for  one  thousand  years,  and  the 
reversion  for  five  hundred,  and  the  holder  of  the  immediate 
term  surrender  to  the  reversioner,  the  term  of  one  thousand 
years  is  merged  and  lost  in  that  of  five  hundred,  it  is  difficult 
to  comprehend  the  proposition,  except  as  a  positive  rule  of 
law.  And  yet  such  is  the  case.  It  grows  out  of  the  nature 
of  a  reversion,  that  if  the  intermediate  estate  ceases  to  be 
interposed  between  the  reversioner  and  the  present  enjoyment 
of  his  estate  as  a  reversioner,  he  will  hold  only  in  the  latter 
capacity,  and  consequently,  when  the  intermediate  term, 
however  long,  was  surrendered  up  to  him,  it  was  extinguished, 
and  he  held  afterwards  as  such  reversioner.^ 

10.  But  if  the  estate  which  is  limited  after  a  present  term 
for  years  is  a  remainder  instead  of  a  reversion,  and  the  pres- 
ent estate  is  surrendered  or  transferred  to  the  holder  of  the 
second  estate,  inasmuch  as  the  second  is  only  to  come  into 

1  Wilson  V.  Gibbs,  28  Penn.  St.  151. 

2  Burton,  Real  Prop.  §  898 ;  Crabb,  Real  Prop.  §  2447  b. 

3  Wms.  Real  Prop.  341;  3  Prest.  Conv.  196. 

4  Burton,  Real  Prop.  §  899 ;  3  Prest.  Conv.  182,  183, 195;  Id.  297  ;  Hugbes  v. 
Robotbam,  Cro.  Eliz.  303 ;  Stephens  v.  Bridges,  6  Madd.  66 ;  3  Sugd.  Vend.  23. 


554  LAW   OF   REAL   PROPERTY.  [bOOK   L 

enjo3'ment  at  the  expiration  of  the  first,  it  will  not  be  a  mer- 
ger and  extinguishment  of  the  first,  but  the  person  in  whom 
they  unite  will  have  the  benefit  of  both  terms  in  succession. 
Thus  where  A  had  an  estate  for  one  hundred  years,  and  B  an 
estate  in  remainder  for  fifty,  and  B  acquired  A's  estate,  he 
thereby  became,  in  effect,  tenant  for  one  hundred  and  fifty 
years.  ^ 

11.  But  if  the  estate  accrue  in  different  rights,  merger  will 

take  place  where  the  accession  is  by  the  act  of  the 
[*356]  parties,  but  *  not  where  it  is  by  act  of  law :  thus  if  an 

executor  who  has  the  reversion  in  his  own  right  be- 
comes possessed,  as  executor,  of  a  term  for  years,  the  two  M'ill 
not  merge  ;  ^  and  it  is  well  settled,  that  if  a  husban-d  has  a 
freehold  in  reversion,  and  his  wife  acquires  a  term  for  years, 
the  term  will  not  merge,  although  he  has  the  complete  power 
of  disposal  of  such  term.  And  where  the  husband  is  the 
termor  and  the  wife  the  owner  of  the  reversion  in  freehold, 
it  is  clear  the  term  will  not  merge  in  the  freehold,  since  he 
only  holds  that  in  right  of  his  wife.''^  But  different  opinions 
have  been  held  where  the  husband  seised  of  a  term  in  right 
of  his  wife  purchases  the  freehold  in  reversion,  whether  the 
term  will  merge.*  And  it  is  even  said  if  an  executor,  hold- 
ing a  term  as  such,  purchases  the  reversion  in  fee,  the  term 
will  merge  in  the  inheritance.^ 

1  Cruise,  Dig.  Tit.  39,  §§  40-46 ;  Co.  Lit.  273  b.  See  this  subject  discussed  by 
Preston,  3  Conv.  20L 

2  Burton,  Real  Prop.  §  903  ;  Wms.  Real  Prop.  342  ;  Clift  v.  White,  19  Barb.  70. 

3  Burton,  Real  Prop.  §§  901,  902;  Wms.  Real  Prop.  342;  Piatt  v.  Sleap,  Cro. 
Jac.  275 ;  3  Sugd.  Vend.  22 ;  3  Prest.  Conv.  276 ;  Jones  v.  Davies,  5  Hurls.  &  N. 
766. 

4  3  Sugd.  Vend.  22  ;  3  Prest.  Conv.  276. 

6  3  Prest.  Conv.  295;  Wms.  Real  Prop.  343;  3  Sugd.  Vend.  20,  21. 


CH.  X.  §  8.]  ESTATES   FOR   YEAR3.  555 

SECTION  VIII. 

LESSEE   ESTOPPED   TO   DENY   LESSOR'S   TITLE. 

1.  Generality  of  the  rule. 

1  a.  How  far  it  extends  to  land  gained  by  disseisin. 

2.  Applies  while  tenant  actually  liolds. 

3.  Lessee  by  indentui'e  estopped  to  plead  nil  habuit. 

4.  Effect  of  accepting  a  lease  from  a  stranger. 

5.  Rule  applies  to  heirs. 

6.  Exceptions  to  the  general  rule. 

7.  May  deny  lessor's  title  after  a  surrender. 

8.  Or  after  lessee's  term  has  expired. 

9.  May  show  lessor's  title  extinguished. 

9  a.     Effect  of  disclaimer  by  lessee  of  lessor's  title. 
10.     While  holding,  lessee  cannot  set  up  want  of  title. 
10  a.     When  tenant  may  deny  lessor's  title. 

1.  Few  propositions  are  more  frequently  and  unqualifiedly 
made,  in  respect  to  the  relation  of  landlord  and  tenant,  than 
that  a  lessee  who  has  been  put  into  possession  of  leased  prem- 
ises by  a  lessor,  and  has  been  permitted  thereby  to  occupy 
them,  shall  not  be  allowed  to  question  his  lessor's  title  in  an 
action  brought  to  recover  possession  of  the  premises,  or  the 
rent  reserved  in  such  demise.^  And  though  one  writer  says, 
"  The  origin  of  this  rule  seems  involved  in  some  obscurity,"  ^ 
it  is  by  others  said  to  be  traceable  to  feudal  tenures, 
where  the  tenant  *  was  bound  to  the  landlord  by  ties  [*357] 
not  much  less  sacred  than  those  of  allegiance  itself.^ 
The  doctrine  has  been  generally  recognized  in  this  country  as 
a  part  of  the  law  of  landlord  and  tenant.^  The  policy  of  the 
law  will  not  allow  a  tenant,  under  such  circumstances,  to  be 
guilty  of  a  breach  of  good  faith  in  denying  a  title,  by  acknowl- 
edging and  acting  under  which  he   originally  obtained,  and 

1  Delaney  v.  Fox,  2  C.  B.  n.  8.  768 ;  Gray  v.  Johnson,  14  N.  H.  414  ;  Pope  v. 
Harkins,  16  Ala.  322 ;  Ansley  v.  Longmire,  2  Kerr,  N.  B.  322.     Post,  pi.  10  a. 

2  Smith,  Land.  &  Ten.  234,  note  a.    For  the  origin  and  growth  of  this  doctrine 
of  estoppel  between  lessee  and  lessor,  see  6  Am.  L.  Rev.  1  et  seq. 

3  Blight's  Lessee  v.  Rochester,  7  Wheat.  548.     See  2  Smith,  Lead.  Cas.  5th 
Am.  ed.  656. 

4  2  Smith,  Lead.  Cas.  5th  Am.  ed.  657. 


556  LAW  OF  REAL  PEOPERTY.  [BOOK  I.. 

has  been  permitted  to  hold  possession  of  the  premises.^  Thus 
Avhere  a  lessee,  whose  duty  it  was  to  pay  the  taxes  assessed 
upon  the  premises,  suffered  the  same  to  be  sold  for  default  of 
payment,  and  purchased  the  same  at  a  public  sale,  it  was  held 
that  he  could  not  set  up  a  title  thus  acquired  against  his 
landlord.^  But  it  would  have  been  otherwise  if  there  were  no 
fault  on  his  part  in  not  making  payment  of  the  taxes.^  Nor 
will  it  allow  him  to  complain  of  a  want  of  title  in  his  lessor, 
so  long  as  he  is  himself  undisturbed.* 

1  a.  Cases  have  arisen  where  the  doctrine  above  stated  has 
been  applied  to  lands  in  possession  of  a  tenant,  in  favor  of  a 
landlord,  although  the  same  were  not  embraced  in  the  terms 
of  his  lease.  As  where  the  tenant,  while  occupying  the  de- 
mised premises,  encroached  upon  adjacent  lands,  and  enclosed 
jjortions  of  them,  which  he  occupied  in  connection  with  the 
premises  long  enough  to  acquire  a  title  to  the  same  by  limita- 
tion, and  the  question  was,  whether  this  should  enure  to  the 
benefit  of  the  landlord  or  the  tenant.  The  cases  have  been 
chiefly  those  where  the  tenant  has  encroached  upon  and  en- 
closed parcels  of  waste  or  common  from  a  manor  adjoining 
the  leased  premises.  In  one  case  the  quantity  thus  enclosed 
was  two  acres,  and  did  not  actually  adjoin  the  leased  j)rem- 
ises.^  In  another,  the  encroachment  was  made  from  the  sea- 
coast.^  In  another,  there  was  a  road  between  the  lea.sed 
premises  and  the  place  of  encroachment,  which  was  said  to  be 
"  a  small  portion  of  waste."'  In  another,  the  parcels  were 
separated  by  a  fence. ^  And  in  another,  the  parcel  enclosed 
was  four  acres  of  waste,  separated  from  the  leased  premises 
by  a  small  stream,  a  fence,  and  a  path.^  And  in  all  these 
cases  the  court  held  that  the  holding  was  to  be  presumed  to 

1  Cooke  V.  Loxley,  5  T.  R.  4;  Balls  v.  Westwood,  2  Camp.  11 ;  2  Dana,  Abr. 
443;  Hodges  v.  Shields,  18  B.  Mon.  830;  Miller  y.  McBrier,  14  S.  &  R.  382; 
Brown  v.  Dysinger,  1  Rawle,  408  ;  Ball  v.  Lively,  2  J.  J.  Marsh.  181 ;  Dezell  v. 
Odell,  8  Hill,  219,  220 ;  Ingraham  v.  Baldwin,  5  Seld.  47. 

2  Haskell  v.  Putnam,  42  Me.  244.  »  Bettison  v.  Budd,  17  Ark.  546. 
*  Ankeny  v.  Pierce,  Breese,  202 ;  George  v.  Putney,  4  Cush.  851 ;  Vance  v. 

Johnson,  10  Humph.  214. 

s  Doe  V.  Jones,  15  M.  &  W.  580.  6  Doe  v.  Rees,  6  C.  &  P.  610. 

7  Andrews  v.  Hailes,  2  E.  &  Black.  349.  8  j^oe  v.  Tidbury,  14  C.  B.  304. 

»  Lisburne  v.  Davies,  L.  R.  1  C.  P.  260. 


CH.  X.  §  8.]  ESTATES    FOR   YEARS.  557 

be  for  the  benefit  of  the  landlord  under  whom  he  held  the 
principal  estate,  unless  the  contrary  was  clearly  proved.  And 
Campbell,  C.  J.,  in  one  of  these  cases,  says,  "  I  think  that, 
when  the  property  is  taken  and  used  as  a  part  of  the  holding, 
the  tenant  can  as  little  dispute  the  title  to  it  as  he  can  dis- 
pute the  title  to  any  other  part  of  the  premises."  And  in  still 
another  case,  Parke,  B.,  says,  "  It  is  not  necessary  that  the  land 
enclosed  should  be  adjacent  to  the  demised  premises ;  the 
same  rule  prevails  when  the  encroachment  is  at  a  distance." 
"  Whether  the  enclosed  land  is  part  of  the  waste,  or  belongs 
to  the  landlord,  or  a  third  person,  the  presumption  is  that 
the  tenant  has  enclosed  it  for  the  benefit  of  the  landlord,  un- 
less he  has  done  some  act  disclaiming  the  landlord's  title."  ^ 
But,  as  has  already  been  said,  this  presumption  may  be  con- 
trolled by  evidence.  As  where,  as  is  said  in  the  case  last 
cited,  "the  tenant  conveys  it  (the  parcel  encroached)  to  an- 
other person,  and  the  conveyance  is  communicated  to  the 
landlord,  then  it  can  no  longer  be  considered  as  part  of  the 
holding."  And  where  a  tenant  occupied  a  parcel  of  another's 
land  without  his  permission,  and  hired  and  occupied  a  parcel 
adjacent  to  it,  and  paid  rent  for  it  to  the  owner  of  the  first 
parcel,  and  continued  this  for  more  than  twenty  years,  it  was 
held  that  he  might,  nevertheless,  claim  to  hold  the  first  parcel 
by  adverse  possession.^ 

2.  All  that  the  law  requires  is,  that,  during  the  time  which 
the  tenant  actually  holds  by  permission  of  the  landlord,  the 
landlord's  title  shall  not  be  disputed.  In  technical  phrase, 
the  tenant  shall  not  be  allowed  to  plead,  to  his  landlord's 
action,  nil  habuit  in  tenementis.^  And  this  would  be  applied, 
though  the  tenant  held  under  a  parol  demise  from  a  tenant  at 
will ;  he  would  be  estopped  to  deny  his  lessor's  title.*  Upon 
this  general  proposition,  that  a  tenant  cannot  dispute  his  land- 
lord's title  in  an  action  involving  that  question,  the  reader  is 
referred  to  the  cases  cited  below,  in  addition  to  those  already 
mentioned,  while  it  will  be  borne  in  mind  that  there  are  limi- 
tations and  exceptions  to  this  rule,  which  will  be  hereafter 

1  Kingsmill  v.  Millard,  11  Exch.  313.     See  also  Doe  v.  Murrell,  8  C.  &P.  134. 

2  Dixon  V.  Baty,  L.  R.  1  Exch.  259. 

8  Boston  V.  Binney,  11  Pick.  8;  People  w.  Stiner,  45  Barb.  56;  post,  pi.  10  a. 
*  Coburn  v.  Palmer,  8  Cush.  124. 


558  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

referred  to.^     The  same  rule  also  applies  between  the  lessee 
and  the  assignee  of  his  lessor. ^ 

3.  Thus,  if  the  demise  was  by  indenture,  the  tenant  was 
positively  estopped  to  plead  nil  habuit,  &c.,  even  though  the 
lessee  may  have  hired  and  eiijoyed  only  what  was  clearly  his 

own  land,  as  would  be  the  case  if  a  disseisor  were  to 
[*358]  demise  to  his  *  disseisee  by  indenture.^     By  accepting 

a  lease  and  becoming  a  tenant,  he  admitted  the  title 
of  his  landlord,  and  thereby  precluded  himself  from  disputing 
it.*  But  such  estoppel  would  only  continue  during  the  term 
of  the  hiring  ;  after  that  the  lessee  might  set  up  his  own  title 
against  his  lessor.^  But  where  the  lessor  was  not  himself  in 
possession,  the  lessee  was  not  estopped,  by  a  written  agree- 
ment to  hold  for  a  certain  time  and  pay  rent,  to  plead  nil 
habuit  to  an  action  for  rent.^  And  the  rule  is  equally  impera- 
tive in  actions  for  use  and  occupation  where  the  demise  is 
by  parol,  and  applies  as  well  after  as  during  the  term,  and 
where  the  tenant  holds  over  after  the  expiration  of  the  term.'^ 

1  Phillip's  Lessee  v.  Robertson,  2  Overt.  399 ;  Robinson  v.  Hathaway,  Brayt. 
161 ;  Darby  v.  Anderson,  1  Nott  &  McC.  369 ;  Moore  v.  Beasley,  3  Ohio,  294  ; 
Hamit  v.  Lawrence,  2  A.  K.  Marsh.  36G;  Moshier  v.  Reding,  12  Me.  478;  Lively 
V.  Ball,  2  B.  Mon.  53 ;  St.  Louis  r.  Morton,  6  Mo.  -476 ;  Terry  v.  Ferguson,  8 
Port.  (Ala.)  500 ;  Caldwell  v.  Harris,  4  Humph.  24  ;  Russell  v.  Fabyan,  7  Fost. 
(N.  H.)  529;  WiUison  v.  Watkins,  3  Pet.  43;  Tuttle  v.  Reynolds,  1  Vt.  80 ; 
Blight's  Lessee  v.  Rochester,  7  Wheat.  547 ;  Smith,  Land.  &  Ten.  234,  Morris' 
notes ;  McCartney  v.  Hunt,  16  HI.  76  ;  post,  pi.  10  a. 

2  Tuttle  V.  Reynolds,  1  Vt.  80 ;  Funk's  Lessee  v.  Kincaid,  5  Md.  404. 

3  Kempe  v.  Goodall,  2  Ld.  Raym.  1154 ;  Heath  v.  Vermeden,  3  Lev.  146  ;  Wil- 
kins  V.  Wingate,  6  T.  R.  62;  Broom's  Ma.xims,  162;  Fletcher  v.  M'Farlane,  12 
Mass.  45;  Wilson  v.  Townshend,  2  Ves.  693  ;  Miller  v.  Bonsadon,  9  Ala.  317  ; 
Vernam  v.  Smith,  1  E.  D.  Smith  (15  N.  Y.),  327  ;  Co.  Lit.  47  b. 

*  Page  V.  Kinsman,  43  N.  H.  331  ;  Alwood  v.  Mansfield,  33  III.  458. 

5  Accidental  Death  Ins.  Co.  v.  Mackenzie,  10  C.  B.  n.  s.  870;  Page  v.  Kins- 
man, 43  N.  H.  331  ;  Co.  Lit.  47  b ;  2  Prest.  Abs.  210,  409.  See  Prest.  ed.  Shep. 
Touch.  .53,  note.  To  make  an  estoppel,  the  lease  must  be  by  indenture.  Burt. 
Real  Prop.  §  850  and  note.  See  Carpenter  v.  Thomson,  3  N.  H.  204,  the  estoppel 
only  continues  during  the  term.  Russell  r.  Allard,  18  N.  H.  225  ;  Jones'  Case, 
Moore,  181 ;  Gray  v.  Johnson,  14  N.  H.  421 ;  Russell  v.  Fabyan,  7  Foster,  529,  537  ; 
WiUison  v.  Watkins,  3  Peters,  48  ;  post,  pi.  10  a. 

6  Chettle  V.  Pound,  1  Ld.  Raym.  746 ;  post,  pi.  10  a. 

■f  Binney  v.  Chapman,  5  Pick.  124  ;  Codman  v.  Jenkins,  14  Mass.  93  ;  Shelton 
I'.  Doe,  6  Ala.  2.30  ;  Jackson  v.  Stiles,  1  Cow.  575  ;  Falkner  r.  Beers,  2  Doug. 
(Mich.)  117;  Vernam  v.  Smith,  1  E.  D.  Smith  (15  N.  Y.),327  ;  Lewis  v.  Willis, 
1  Wils.  314 ;  Phipps  v.  Sculthorpe,  1  B.  &  Aid.  50 ;  Fleming  v.  Gooding,  10  Bing 
649. 


CH.  X.  §  8,]  ESTATES    FOR   YEARS.  669 

Though,  if  there  be  a  written  lease,  the  lessor  cannot  recover 
for  use  and  occupation,  and  such  would  be  the  case  at  the 
common  law  if  the  lease  were  under  seal.^  So  if  a  tenant 
under  a  lease  were  to  convey  the  estate  in  fee  to  a  third 
party,  he  would  have  no  better  right  to  contest  the  title  of 
the  lessor  than  the  lessee  himself.^  And  the  doctrine  is  thus 
broadl}'  stated  in  one  case  :  "  The  same  estoppel  which  pre- 
vents a  tenant  from  disputing  his  landlord's  title  extends  to 
all  persons  who  enter  upon  premises  under  a  contract  for  a 
lease,  and  to  all  persons  who,  by  purchase,  fraud,  or  other- 
wise, obtain  possession  from  such  tenant."  ^  But  if  one,  not 
knowing  that  the  tenant  holds  a  lease,  purchases  the  estate 
by  an  absolute  deed  from  the  tenant,  who  has  an  apparent 
legal  title  other  than  his  lease,  such  purchaser  may  contest 
the  title  of  the  lessor.* 

4.  The  acceptance  of  a  lease  from  a  third  party  by  a  ten- 
ant, except  as  hereafter  explained,  would  be  a  fraudulent 
attornment,  and  cannot  prevail  against  his  admission  that  he 
entered  under  the  lessor  (the  plaintiff).^  So  the  tenant  can- 
not set  up  a  title  adverse  to  the  lessor's,  either  in  himself  or  a 
third  party,  inconsistent  with  the  lessor's  right  to  grant  the 
original  lease,^  or  impeach  the  validity  of  the  landlord's  title 
at  the  time  of  the  commencement  of  the  demise,'^  even 
though  this  title  may  have  been  gained  during  the  continu- 

1  Warren  v.  Ferdinand,  9  Allen,  357 ;  Fuller  v.  Swett,  6  Allen,  219. 

2  Phillips  V.  Rothwell,  4  Bibb,  33 ;  Den  v.  Gustin,  7  Halst.  42 ;  Turly  v.  Rog- 
ers, 1  A.  K.  Marsh.  245. 

8  Rose  V.  Davis,  11  Cal.  135;    Russell  v.  Erwin,  38  Ala.  50. 

*  Tliompson  v.  Clark,  7  Penn.  St.  62 ;  Cooper  v.  Smith,  8  Watts,  536 ;  Jack- 
son V.  Davis,  5  Cow.  129. 

^  Jackson  v.  Harper,  5  Wend.  246;  Byrne  v.  Beeson,  1  Doug.  (Mich.)  179; 
Allen  V.  Chatfield,  8  Minn.  435;  Blanchard  v.  Tyler,  12  Mich.  345. 

t"  Reed  ;;.  Shepley,  6  Vt.  602 ;  Jackson  v.  Stewart,  6  Johns.  34 ;  Syme  v. 
Saunders,  4  Strobh.  196 ;  Jackson  ".  Harper,  5  Wend.  246  ;  Chambers  v.  Pleak, 
6  Dana,  426 ;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528 ;  Jackson  i'.  Row- 
land, 6  Wend.  666;  Plumeri?.  Plumer,  10  Fost.  (N.  H.)  558;  Hood  v.  Mather,  2 
A.  K.  Marsh.  653  ;  Jackson  v.  Whedon,  1  E.  D.  Smith,  141 ;  Tondro  i;.  Cush- 
man,  5  Wis.  279 ;  Hardisty  v.  Glenn,  32  111.  66 ;  Doe  v.  Phillips,  1  Kerr,  N.  B. 
533  ;  Balls  v.  Westwood,  2  Camp.  11. 

7  Delaney  v.  Fox,  2  C.  B.  N.  8.  777.  See  Despard  v.  Walbridge,  1  E.  D 
Smith  (15N.  Y.),  378. 


560  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

[*359]  ance  *  of  the  lease  ^  by  purchase  from  a  third  person,^ 
or  the  lessee  was  in  possession  when  he  accepted  the 
lease.^ 

5.  Nor  is  the  tenant  any  more  at  liberty  to  deny  the  title  of 
the  heir,  where  the  lessor  dies  during  the  term,  than  to  deny 
the  title  of  the  lessor  himself.*  And  this  doctrine  applies  as 
to  all  persons  to  whom  the  title  has  come  from  the  landlord.^ 
But  he  maj^  show  that  the  ancestor  of  such  heir  devised  the 
estate  to  a  third  party .^  And  the  principles  above  stated  were 
adopted  in  the  case  of  an  application  by  a  lessor  against  the 
tenant  to  enjoin  him  from  cutting  timber  on  the  premises. 
The  fact  of  the  tenancy  was  sufBcient  for  the  plaintiff  without 
producing  evidence  of  his  title  to  the  premises.'^ 

6.  But  broad  as  might  seem  the  positions  above  stated,  as 
covering  the  question  of  a  tenant's  right  to  contest  his  lessor's 
title,  there  are  classes  of  cases  where  this  may  be  done,  which 
will  be  found  to  embrace  numerous  individual  instances, 
among  which  are  those  where  the  lessee  was  induced  to  accept 
possession  from  his  lessor  by  fraud  or  mistake,^  where  he  has 
been  deprived  of  the  possession  derived  from  his  lessor,  by 
some  one  who  has  a  paramount  title,  or  has  3delded  the  same, 
when  claimed,  to  one  having  such  title,  without  having  pro- 
cured this  to  be  done,  and  without  violating  good  faith.^  So 
if  the  lessor's  title  has  expired  or  been  extinguished  since  the 
lessee's  term  began,  and  the  lessee  has  an  independent  right  to 
the  possession,  the  latter  may  avail  himself  of  it,  showing 
thereby  that  the  lease  under  which  he  held  had,  in  fact,  been 
determined. ^^     He  may  show   that  his   landlord's    title   has 

1  Galloway  v.  Ogle,  2  Binn.  468  ;  Sharpe  v.  Kelley,  6  Denio,  431  ;  Wilson  v. 
Smith,  6  Yerg.  379  ;  Drane  v.  Gregory,  3  B.  Mon.  619 ;  Elliott  v.  Smith,  23  Penn. 
St.  131 ;  Clemm  v.  Wilcox,  15  Ark.  102. 

2  Marley  v.  Rodgers,  5  Yerg.  217.  »  McConnell  v.  Bowrlry,  4  Mon.  392. 
*  Blantin  v.  Whitaker,  11  Humph.  313.    ^  Russell  v.  Allaril,  18  N.  H.  225. 

6  DespHrd  v.  Walbridge,  1  E.  D.  Smith  (15  N.  Y.),  377 ;  post,  pi.  10  a. 
^  Parker  v.  Raymond,  14  Mo.  535. 

8  Hockenbury  v.  Snyder,  2  Watts  &  S.  240  ;  Miller  r.  Bonsadon,  9  Ala.  317  ; 
Jackson  v.  Spear,  7  Wend.  401  ;  Thayer  v.  Society,  &c.,  20  Penn.  St.  60 ;  Tison 
V.  Yawn,  15  Ga.  491 ;  Alderson  v.  Miller,  15  Gratt.  279 ;  post,  pi.  10  a. 

9  Simers  v.  Salters,  3  Denio,  214  ;  Whalin  v.  White,  25  N.  Y.  465 ;  Evertsen 
V.  Sawyer,  2  Wend.  507  ;  post,  pi.  10  a. 

10  Smith,  Land.  &  Ten.  234,  n. ;    Walton  v.  Waterhouse,  2  Saund.  418,  n. ; 


CH.  X.  §  8.]  ESTATES   FOR   YEARS.  5G1 

expired,  but  he  may  not  dispute  the  validity  of  that  title. ^  So 
he  may  show  that,  since  the  inception  of  the  lease,  the  lessor's 
title  has  determined  by  operation  of  law  or  the  act  of  the  land- 
lord.2  And  as  to  the  necessity  of  an  actual  eviction,  the 
doctrine  seems  to  be  now  settled,  that  if  a  party,  having  a  para- 
mount rigiit  to  evict  the  tenant  of  another  who  is  in  occupation 
of  the  premises,  goes  to  him  claiming  to  exercise  the  right  to 
evict  him,  it  would  be  tantamount  to  an  expulsion,  and  the 
landlord's  title  would  thereby  be  determined,  and  the  posses- 
sion which  the  tenant  derived  from  him  no  longer  remain.^ 
Thus,  if  the  tenant  has  been  evicted  in  an  action  of  ejectment, 
or  yields  to  such  a  judgment  without  actual  eviction, 
he  may  *  take  a  new  lease  from  the  plaintiff  in  eject-  [*360] 
ment,  and  thereupon  resist  the  claim  of  the  first  lessor, 
provided  he  had  notice  of  the  pendenc}^  of  such  ejectment 
suit.^  But  if  a  tenant  yield  to  a  writ  of  possession  which 
does  not  run  against  him  or  his  landlord,  and  then  attorn  to 
the  demandant  in  such  writ,  he  cannot  set  up  this  in  defence 
against  bis  landlord.^  Or,  if  he  be  a  sub-tenant,  he  may 
show  that  the  paramount  landlord  had  entered  and  dispossessed 
him  and  given  him  a  newlease.^  Or  if  a  tenant  of  a  mortga- 
gor, he  may  show  that  the  mortgagee  has  gained  possession, 
and  given  the  lessee  notice  to  pay  him  the  rent.'^    Or  that 

Brudnell  v.  Roberts,  2  Wils.  143  ;  Strack  v.  Seaton,  26  Mann.  &  R.  729 ;  Frank- 
lin V.  Carter,  1  C.  B.  757  ;  Jackson  v.  Rowland,  6  Wend.  666  ;  Tilghman  v.  Little, 
13  111.  241 ;  Ryerss  v.  Farwell,  9  Barb.  615 ;  Wild's  Lessee  v.  Serpell,  10  Gratt. 
415 ;  Hopcraft  v.  Keys,  9  Bing.  613  ;  England  v.  Slade,  4  T.  R.  682. 

1  Giles  V.  Ebsworth,  10  Md.  333;  Despard  v.  Walbridge,  1  E.  D.  Smith, 
874. 

2  Wolf  V.  Johnson,  30  Miss.  513  ;  Horner  v.  Leeds,  1  Dutch.  106  ;  post,  pi.  10  a. 
s  Mayor  v.  Whitt,  15  M.  &  W.  571 ;  Delaney  v.  Fox,  2  C.  B.  n.  s.  775,  777 ; 

Morse  v.  Goddard,  13  Met.  177 ;  Simers  v.  Salters,  3  Denio,  217 ;  Whalin  v. 
White,  25  N.  Y.  465  ;  post,  pi.  10  a. 

*  Foster  v.  Morris,  3  A.  K.  Marsh.  609 ;  Lunsford  v.  Turner,  5  J.  J.  Marsh. 
104 ;  Stewart  v.  Roderick,  4  Watts  &  S.  188  ;  Wheelock  v.  Warschauer,  21  Cal. 
316. 

5  Calderwood  v.  Pyser,  31  Cal.  337. 

6  Elms  V.  Randall,  2  Dana,  100. 

^  Stedman  v.  Gassett,  18  Vt.  346 ;  Magill  i\  Hinsdale,  6  Conn.  464 ;  Fitzger- 
ald V.  Beebe,  2  Eng.  (Ark.)  310 ;  Welch  v.  Adams,  1  Met.  494  ;  Jones  v.  Clark, 
20  Johns.  51 ;  Joplin  v.  Johnson,  2  Kerr,  N.  B.  543 ;  Doe  v.  Simpson,  3  Kerr, 
194 ;  Massachusetts  Hospital  Life  Ins.  Co.  v.  Wilson,  10  Met.  126 ;  Kimball  v. 
Lockwood,  6  R.  L  139 ;  Evans  v.  ElUot,  9  A.  &  El.  342. 
VOL.  I.  36 


562  LAW  OP  REAL  PROPERTY.  [hOOK  J. 

he  has  j'-ielcled  to  a  mortgagee  claiming  under  a  mort- 
gage subsequent  to  his  lease,  and  paid  him  rent.^  Or  that  he 
has  purchased  the  mortgagee's  interest,  and  has  given  notice 
to  the  lessor  that  he  elects  to  hold  under  his  mortgage.^  So 
he  may  show  that  the  landlord  has  assigned  his  title,  and  that 
he  is  therefore  bound  as  tenant  to  his  assignee,  since  this  is 
not  disputing  his  landlord's  title,  but  showing  that  he  holds 
under  and  in  accordance  with  it.^  But  a  tenant  cannot  attorn 
to  one  who  has  acquired  a  title  hostile  to  that  of  the  landlord, 
though  it  be  a  better  title  ;  and  if  he  do  so,  and  take  a  lease  from 
the  one  to  whom  he  has  attorned,  promising  to  pay  him  rent, 
he  may  have  to  pay  both  of  his  lessors,  since  the  privity  of 
estate  with  his  first  lessor  is  not  destroyed  by  such  attorn- 
ment, and  he  would  be  estopped  by  his  lease  to  deny  his 
second  lessor's  title.^ 

7.  If  the  tenant  surrenders  the  possession  which  he  holds 
of  the  lessor,  or  surrenders  his  lease  so  that  the  lessor  has  a 
reasonable  time  and  opportunity  to  retake  the  possession,  the 
tenant  may  take  a  new  lease  from  one  claiming  adversely  to 
his  original  lessor,  and  dispute  the  title  of  the  latter.^ 

8.  If,  moreover,  the  term  of  the  lessee  shall  have  expired, 
it  seems  he  may  be  at  liberty  to  dispute  his  landlord's  title, 
after  the  expiration  of  his  lease,  though  even  then  it  would 
seem,  before  he  may  do  it,  there  should  be  some  open  and 
explicit  disavowal  and  disclaimer  of  holding  under  the  lessor, 
brought  home  to  the  knowledge  of  the  latter.^ 

9.  Not  only  may  the  tenant  show  the  determination  or  ex- 
tinguishment of  the  landlord's  title  after  making  the  lease,  as 

above  stated,  but  he  may  show  that  he  has  himself 

[*361]  become  the  *  owner  of  the  land  by  ha\dng  purchased 

the  reversion.'^    And  the  result  of  the  numerous  cases 

1  Kimball  v.  Lockwood,  6  R.  I.  138 ;  Delaney  v.  Fox,  2  C.  B.  n.  8.  778.  See 
McDevitt  V.  Sullivan,  8  Cal.  592 ;  post,  pi.  10  a. 

2  Pierce  v.  Brown,  24  Vt.  165.  »  Pope  v.  Harkins,  16  Ala.  323. 
4  Bailey  v.  Moore,  21  111.  165. 

6  Boyer  v.  Smith,  3  Watts,  449 ;  Reed  v.  Shepley,  6  Vt.  602 ;  Mosliier  y.  Red- 
ing, 12  Me.  478  ;  Wild's  Lessee  v.  Serpell,  10  Gratt.  415 ;  Lunsford  v.  Turner,  5 
J.  J.  Marsh.  104  ;  Tilghman  v.  Little,  13  III.  241  ;  Thayer  v.  Society,  &c.,  20 
Penn.  St.  60  ;  Ansley  v.  Longmire,  2  Kerr,  N.  B  322. 

6  Zeller  v.  Eckert,  4  How.  295.     See  post,  vol.  3,  p.  *463  ;  post,  pi.  10  a. 

7  Camley  v.  Stanfield,  10  Tex.  546  ;  Elliott  i*.  Smith,  23  Penn.  St.  131 ;  George 
V.  Putney,  4  Gush.  355 ;  post,  pi.  10  a. 


CH.  X.  §  8.j  ESTATES   FOR   YEARS.  563 

ma}^  perhaps,  be  summed  up  in  the  proposition,  that  wherever 
there  is  a  paramount  title  in  a  third  person,  who  has  a  right 
thereby  to  the  possession  of  the  premises,  and  it  can  be  done 
without  any  collusion,  or  bad  faith  to  the  lessor,  the  tenant,  in 
order  to  prevent  being  expelled  by  the  holder  of  that  title,  to 
whom  he  w^ould  otherwise  be  rendering  himself  liable  as  a 
trespasser,  may  yield  the  possession  and  attorn  to  or  take  from 
such  holder  of  the  title  a  new  lease,  or  he  may  abandon  the 
possession,  and,  in  either  case,  he  will  thereafter  not  be  liable 
to  pay  rent  to  the  original  lessor,  and  may  resist  the  lessor's 
claim  to  recover  possession,  by  virtue  of  the  new  right  thereby 
acquired.  But  it  seems  that  he  ought,  in  all  these  cases,  to 
give  notice  to  the  lessor  of  his  abandoning  or  holding  adverse 
possession,  that  he  may  not  take  advantage  of  the  confidence 
reposed  in  him  by  the  lessor  in  putting  him  into  possession 
of  the  estate,  to  deprive  him  of  any  rights  which  the  lessor  had 
thereby  yielded  to  his  keeping.^  If,  therefore,  he  were  to 
purchase  a  better  title  than  that  of  his  lessor,  he  ought,  never- 
theless, to  surrender  possession  to  his  lessor  before  he  seeks 
to  avail  himself  of  his  new  title  against  his  landlord.^ 

9  a.  This  subject  may  be  regarded  in  two  aspects,  one  in  its 
connection  with  the  question  of  title  to  the  premises  in  a  real 
action,  the  other  as  affecting  the  tenant's  liability  in  an  action 
for  the  recovery  of  rent  upon  an  actual  or  implied  contract. 
Thus,  if  the  tenant  of  a  lessor  give  him  express  notice  that  he 
wall  no  longer  hold  under  him,  he  is  regarded  as  thereby  com- 
mitting an  actual  disseisin,  and  the  statute  of  limitations  upon 
an  adverse  possession  would  begin  to  run  from  the  time  of  such 

1  Bowser  v.  Bowser,  10  Humph.  49 ;  Ryerss  v.  Farwell,  9  Barb.  615.;  Law- 
rence V.  Miller,  1  Sandf.  516  ;  Casey  v.  Gregory,  13  B.  Mon.  506;  Devacht  v. 
Newsam,  3  Ohio,  57 ;  Wells  v.  Mason,  4  Scam.  84  ;  Perrin  v.  Calhoun,  2  Brer. 
248  ;  Morse  v.  Goddard,  13  Met.  177  ;  Wadsworthville  School  v.  Meetze,  4  Rich. 
(S.  C.)  50 ;  Poole  v.  Whitt,  15  M.  &  W.  571.  Where  the  lease  was  by  husband 
and  wife,  their  title  being  a  life-estate  in  the  wife.  She  died,  and  the  tenant 
attorned  to  the  heir.  It  was  held  he  might  defend  against  the  claim  of  the  hus- 
band as  lessor.  Hill  v.  Saunders,  4  B.  &  C.  529.  Where  a  judgment  creditor 
of  a  lessor  set  off  the  land  subject  to  the  lease  of  the  tenant,  and  required  him 
to  pay  rent  to  him,  and  he  gave  a  written  agreement  to  do  so,  it  was  held,  that 
thereby  he  ceased  to  be  liable  for  rent  to  the  original  lessor.  George  v.  Putney, 
4  Gush.  354. 

2  Hodges  V.  Shields,  18  B.  Mon.  832 ;  post,  pi.  10  a. 


564  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

notice.  But  the  principle  of  repudiating  a  tenancy  without 
actually  surrendering  possession  does  not  apply  to  actions  for 
the  recovery  of  rent,  or  excuse  the  tenant  from  paying  it,  or 
from  his  liability  for  use  and  occupation  under  the  contract  by 
which  he  gained  his  entry  and  possession  for  and  during  the 
full  term  of  such  occupation.  In  other  words,  a  party  cannot, 
of  his  own  will,  put  an  end  to  a  contract  under  which  he  con- 
tinues to  receive  that  for  which  he  promised  to  make  compen- 
sation.^  Although  the  above  rulings  were  hardly  called  for  by 
the  circumstances  of  the  case,  they  will  be  to  a  considerable 
extent  sustained  by  dicta  of  courts  in  the  cases  cited  below. 
The  doctrine,  that,  after  a  tenant  has  expressly  disclaimed  to 
hold  any  longer  under  his  landlord,  he  has  thereby  committed 
an  actual  disseisin,  and  may  be  sued  by  his  landlord  in  tres- 
pass, and  the  statute  of  limitations  would  begin  to  run  as  in 
cases  of  adverse  possession,  though  stated  in  the  above  case  as 
"  undoubtedly  a  new  doctrine,"  seems  to  be  sustained  by  the 
court  in  3  Peters,  p.  49,  in  the  position  there  assumed  not  only 
that  the  lessor  may  bring  ejectment  under  such  circumstances, 
but  "  was  bound  to  do  so."  But  in  Doe  v.  Smythe,  Dampier, 
J.,  says,  "  The  tenant  in  possession  paid  rent  to  the  lessor,  and 
then  disclaimed.  But  he  ought  to  give  back  the  possession  to 
the  lessor.  It  has  been  ruled  often,  that  neither  the  tenant 
nor  any  one  claiming  under  him  can  controvert  the  landlord's 
title.  He  cannot  put  another  in  possession,  but  must  deliver 
up  the  premises  to  his  own  landlord."  And  in  Doe  v.  Wells, 
Patteson,  J.,  says,  "  No  case  has  been  cited  where  a  lease  for  a 
definite  term  has  been  forfeited  by  mere  words."  So  far  as  the 
recovery  of  rent  is  concerned,  the  cases  seem  to  concur  in 
holding,  that  the  tenant  cannot  rely  in  defence  upon  a  dis- 
claimer of  his  landlord's  title,  unless  he  has  been  actually 
evicted,  or  what  was  equivalent,  and  had  yielded  his  possession 
to  one  having  a  better  title.  And  it  is  apprehended,  the  right 
to  treat  a  disclaimer  as  a  disseisin  is  by  election  upon  the 
part  of  the  lessor  alone,  as  otherwise  the  tenant,  if  holding 
under  a  long  lease  which  he  was  desirous  of  terminating,  might 
by  such  a  disclaimer  compel  his  landlord  to  oust  him  by  a  judg- 
ment of  court,  or  be  in  danger  of  losing  his  whole  estate  by 
1  Sherman  v.  Champlain  Transp.  Co.,  31  Vt.  110. 


CH.  X.  §  8.]  ESTATES   FOR   YEARS.  565 

the  tenant's  holding  adversely  for  the  period  of  limitation. 
And  the  language  of  the  court  in  Teller's  Lessee  v.  Eckertis, 
"  The  trustee  may  disavow  and  disclaim  his  trust,  the  tenant 
the  title  of  his  landlord  after  the  expiration  of  his  lease."  ^ 

10.  But  still,  if  the  tenant  enters  under  his  lease,  and  con- 
tinues to  occupy  without  what  would  be  tantamount  to  an 
eviction,  he  cannot,  in  an  action  to  recover  the  rent,  show 
either  that  his  lessor  had  no  title  when  he  made  his  lease,  or 
that  his  title  has  determined  since  the  making  of  his  lease.^ 
Nor  could  he  set  up  in  defence  to  an  action  for  rent  that  the 
lessor  holds  under  a  grant  which  is  void  as  against  the  cred- 
itors of  his  grantor,  because  made  to  defraud  them.^  In  other 
words,  the  relation  of  landlord  and  tenant,  when  once 
*established,  must  be  dissolved,  and  the  possession  [*362] 
restored,  or  something  equivalent  thereto  done  by  the 
tenant,  before  he  can  set  up  another  title  ;  *  but  there  is 
nothing  to  hinder  a  tenant  from  buying  up  a  title  adverse  to  that 
of  his  landlord,  and  asserting  it  at  the  end  of  his  term,  after 
having  delivered  up  possession  of  the  premises,^  though  the 
mere  taking  of  a  lease,  unless  followed  by  possession  under 
it,  does  not  operate  to  estop  the  lessee  from  setting  up  a  title 
adverse  to  that  of  his  lessor.^ 

10  a.  The  frequency  and  extent  to  which  the  dogma,  that  a 
tenant  may  not  dispute  the  title  of  his  landlord,  is  liable  to  be 

1  Willison  V.  Watkins,  3  Pet.  43,  48,  49;  Doe  v.  Smytlie,  4  M.  &  S.  348 ;  Doe 
17.  Wells,  10  Ad.  &  El.  427  ;  Teller's  Lessee  v.  Eckert,  4  How.  289,  296 ;  Jackson 
r.  Vincent,  4  Wend.  633,  637;  Jackson  v.  Collins,  11  Johns.  1,  5;  Greene  v. 
Munson,  9  Vt.  40;  North  v.  Barnum,  10  Vt.  223;  Hall  v.  Dewey,  10  Vt.  593; 
Duke  V.  Harper,  6  Yerg.  280,  286,  287  ;  Fusselman  v.  Worthington,  14  111.  135; 
Wall  V.  Goodenough,  16  111.  416;  Fishar  v.  Prosser,  Cowp.  218;  Peyton  v.  Stith, 
5  Peters,  491 ;  Wilson  v.  Weathersby,  1  Nott  &  McC.  373 ;  Blight's  Lessee  v. 
Rochester,  7  Wheat.  547 ;  Doe  v.  Reynolds,  27  Ala.  376 ;  DeLancey  j;.  Ganong, 
5  Seld.  9 ;  Jones  v.  Clark,  20  Johns.  62. 

2  Syne  v.  Sanders,  4  Strobh.  196  ;  Sneed  v.  Jenkins,  8  Ired.  27 ;  Den  v.  Ash- 
more,  2  N.  J.  261 ;  Morse  v.  Roberts,  2  Cal.  515 ;  Naglee  v.  IngersoU,  7  Penn. 
St.  185  ;  Longfellow  v.  Longfellow,  61  Me.  590. 

3  McCurdy  v.  Smith,  35  Penn.  St.  1(  8. 

*  Porter  v.  Mayfield,  21  Penn.  St.  264;  McGinnis  v.  Porter,  20  Penn.  St. 
80 ;  Thompson  v.  Clark,  7  Penn.  St.  62 ;  Brown  v.  Keller,  32  111.  155 ;  Russell 
V.  Erwin,  38  Ala.  50. 

6  Williams  v.  Garrison,  29  Ga.  503. 

6  Nerhoth  v.  Althouse,  8  Watts,  427 ;  Chettle  v.  Pound,  1  Ld.  Raym.  746. 


566  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

called  in  question,  and  the  importance  of  defining  its  practical 
limitations  and  restrictions  seems  to  justify  an  attempt  to  col- 
late into  a  summary  form  some  of  the  cases,  several  of  which 
have  been  decided  upon  the  subject  since  the  publication  of 
the  last  edition  of  this  work,  though  at  the  hazard  of  repeat- 
ing some  things  that  have  already  been  stated.  The  questions 
involved  in  this  inquiry  are  not  confined  to  any  particular  form 
of  action.  They  may  arise  in  actions  of  ejectment,  covenant, 
or  assumpsit  for  use  and  occupation.^  In  one  thing  the  cases 
seem  to  agree,  that  if  one  in  possession  of  land  puts  another 
into  possession  of  it  under  an  agreement  to  pay  rent  for  it,  or 
to  hold  it  of  the  lessor,  though  without  rent,  and  to  restore  it 
to  him,  where  no  fraud  or  misrepresentation  has  been  practised, 
the  lessee  will  not  be  admitted  to  deny  the  right  of  his  lessor,  at 
the  time  of  making  the  lease,  to  make  a  valid  contract  by  which 
he,  the  lessee,  is  bound.^  He  may  show  that  he  was  induced 
to  accept  the  possession  from  the  lessor  b}^  fraud  or  misrepre- 
sentation.^ Or  he  may  show  that  the  lessor  was  not  in  pos- 
session of  the  premises  when  he  made  the  lease,  and  had  no 
right  to  make  it.^  A  lessee  who  accepts  a  lease  signed  by  one 
as  agent  or  trustee,  without  disclosing  the  princijDal,  has  no 
better  right  to  deny  the  title  thereby  purporting  to  be  granted 
than  if  made  in  the  name  of  the  principal.^  If  one  comes  in  un- 
der a  tenant  who  has  paid  rent  to  his  lessor,  he  will  not  be  at 
liberty  to  deny  the  title  of  suclv  lessor.^  As  a  general  proposi- 
tion, one  who  accepts  a  lease  or  permission  to  occupy  and  posses- 
sion from  one  who  is  in  possession  of  land,  cannot  controvert  or 

1  Hilbourn  v.  Fogg,  99  Mass.  11 ;  Delaney  v.  Fox,  2  C.  B.  n.  3.  775 ;  Bigler 
V,  Furman,  58  Barb.  555. 

2  Hilbourn  v.  Fogg,  sup.,  where  the  lessor  was  a  tenant  at  will.  Towne  v. 
Butterfield,  97  Mass.  106 ;  Franklin  v.  Merida,  35  Cal.  558 ;  Bigler  v.  Furman, 
58  Barb.  555;  Delaney  v.  Fox,  2  C  B.  n.  s.  775;  Accidental  Death,  &c.  Co.  v. 
McKensie,  10  C.  B.  n.  s.  871 ;  Doe  v.  Barton,  11  Ad.  &  El.  307 ;  Longfellow  v. 
Longfellow,  54  Me.  249 ;  Hawes  v.  Shaw,  100  Mass.  189 ;  Lowe  v.  Emerson,  48 
111.  160. 

3  Tewksbury  v.  Magraff,  33  Cal.  237 ;  Accidental  Death,  &c.  Co.  v.  McKensie, 
sup. 

*  Tewksbury  v.  MagrafF,  sup. ;  Claridge  v.  McKensie,  4  M.  &  G.  154,  155 ; 
Franklin  v.  Merida,  35  Cal.  558. 

5  Bedford  v.  Kelly,  61  Penn.  St.  493. 

6  In  re  Emery  v.  Barnett,  4  C.  B.  n.  s.  428 ;  Doe  v.  Austin,  9  Bingham,  41. 


CH.  X.  §  8.]  ESTATES   FOR   YEARS.  567 

deny  his  lessor's  right  to  recover  the  rent  or  possession  of  the 
premises  according  to  the  terms  of  the  letting,  until  he  shall 
have  restored  the  possession  to  his  lessor.^  But  the  lessee  may 
show  in  defence  to  the  claim  of  his  lessor  for  rent  or  possession, 
1.  That  he  is  himself  the  owner  of  the  estate  or  has  an  inde- 
pendent right  to  hold  possession,  and  that  the  term  for  which 
he  became  lessee  of  the  premises  has  expired  ;  ^  or,  2.  That  he 
has  been  evicted  by  one  having  a  better  title  than  his  lessor, 
to  whom  he  has  attorned ;  ^  or,  3.  That  he  was  himself  in 
possession  when  the  lease  was  made,  or  did  not  derive  pos- 
session from  the  lessor,  and  his  lessor  has  no  title  to  the  prem- 
ises ;  *  or,  4.  That  since  the  making  of  the  lease,  whatever 
title  the  lessor  then  had  to  the  premises,  has  determined,  or 
been  extinguished,  and  that  he  holds  under  and  in  the  right 
of  one  who  has  thereby  acquired  the  right  of  possession,  as 
well  as  title  to  the  premises.^  So,  if  the  action  be  for  use  and 
occupation,  the  tenant  may  show  that  his  lessor's  title  has 
passed  to  another  since  the  occupation  began  for  which  the  suit 
is  brought,  because,  otherwise,  he  might  be  liable  for  the  same 
occupation  to  two  different  claimants.  But  if  a  tenant  accepts 
possession  from  one  who  has  no  right  to  give  it,  it  is  incum- 
bent upon  him  to  surrender  such  possession,  since  he  could 

1  Tewksbury  v.  MagrafF,  sup.  In  re  Emery  v.  Barnett,  4  C.  B.  n.  s.  428  ;  Doe 
V.  Austin,  9  Bing.  41 ;  Hilbourn  ;;.  Fogg,  99  Mass.  11 ;  Towne  v.  Butterfield,  97 
Mass.  106 ;  Accidental  Death,  &c.  Co.  v.  McKensie,  10  C.  B.  n.  s.  871 ;  Ryerson 
V.  Eldred,  10  Mich.  22 ;  Lowe  v.  Emerson,  48  111.  160  ;  Miller  u.  Lang,  99  Mass. 
13 ;  Longfellow  v.  Longfellow,  54  Me.  249 ;  Doe  v.  Smytlie,  4  M.  &  S.  347. 

2  Accidental  Death,  &c.  Co.  v.  McKensie,  10  C.  B.  n.  s.  871,  Co.  Lit.  47  b ; 
Shields  ;;.  Lozear,  34  N.  J.  496,  where  the  tenant  held  after  the  determination 
of  his  lease  under  a  mortgage  from  the  lessor.  See  Longfellow  v.  Longfellow, 
sup. ;  Stout  V.  Merrill,  35  Iowa,  47. 

3  Kane  County  v.  Harrington,  50  111.  240  ;  Mayor,  &c.  v.  Whitt,  15  M.  &  W.  577 ; 
Shields  V.  Lozear,  sup. ;  Lowe  v.  Emerson,  48  111.  160;  Miller  v.  Lang,  99  Mass. 
13;  Hilbourn  v.  Fogg,  99  Mass.  11  ;  Towne  v.  Butterfield,  100  Mass.  189;  De- 
ianey  v.  Fox,  2  C.  B.  n.  s.  775 ;  Stout  v.  Merrill,  sup. 

*  Tewksbury  v.  Magraff,  33  Cal.  237  ;  Clee  v.  Seaman,  21  Mich.  297  ;  Cla- 
ridge  v.  McKensie,  4  M.  &.  G.  154,  155 ;  Franklin  v.  Merida,  35  Cal.  558. 

5  Franklin  v.  Palmer,  50  111.  202 ;  Duff  v.  Wilson,  69  Penn.  316 ;  Hilbourn  v. 
Fogg,  90  Mass.  11 ;  Stout  j;.  Merrill,  sup. ;  Brudnell  v.  Roberts,  2  Wils.  143  ;  Doe 
V.  Seaton,  2  C.  M.  &  R.  728;  Tewksbury  v.  Magraff,  33  Cal.  237;  Bigler  v.  Fur- 
man,  58  Barb.  555;  Hoag  v.  Hoag,  35  N.  Y.  471  ;  Delaney  v.  Fox,  2  C.  B.  n.  s. 
775;  Shields  v.  Lozear,  34  N.  J.  496;  Doe  v.  Barton,  11  Ad.  &  El.  307;  Claridge 
V.  McKensie,  4  M.  &  G.  151. 


568  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

not,  till  then,  deny  his  donor's  or  lessor's  title.'*  Where  the 
claimant  seeks  to  recover  rent  or  possession  on  the  ground 
that  he  is  the  lessor's  grantee  or  assignee,  the  lessee  may  deny 
that  he  had  thereby  acquired  such  a  title  from  the  lessor  as  to 
entitle  him  to  recover.^  Nor  can  a  tenant  deny  the  title  of 
his  lessor  after  his  lease  has  expired  without  surrendering  pos- 
session to  him,  or  attorning  to  one  having  a  valid  title,  or  at 
least  giving  his  lessor  notice  that  he  claims  under  another  and 
valid  title.^  But  a  tenant  cannot  avoid  his  liability  to  his 
lessor  by  attorning  to  a  stranger,  even  though,  in  Illinois,  such 
stranger  may  have  obtained  judgment  against  him  in  ejectment 
if  he  failed  to  give  his  lessor  notice  of  the  pending  of  such 
suit.*  If  the  title  under  which  the  tenant  seeks  to  defend 
be  acquired  from  the  lessor  himself,  or  by  a  judicial  sale  there- 
of, or  from  the  reversioner,  the  lessor's  title  having  determined, 
he  need  not  first  surrender  his  possession  to  the  lessor  if  he 
is  himself  the  owner  of  the  title,  or  has  attorned  to  the 
owner.^  But  if,  while  holding  under  a  lessor,  the  tenant  pur- 
chases in  an  outstanding  title  from  one  who  is  a  stranger  to  the 
lessor,  the  tenant,  before  he  can  avail  himself  of  it  in  defence 
against  his  lessor,  must  surrender  up  to  him  the  possession.^ 
Nor  could  he  set  up  an  outstanding  title  in  a  third  party  to 
whom  he  had  not  attorned.^  The  eviction  and  attornment 
above  spoken  of  must  be  actual,  so  as  to  change  the  tenancy 
in  order  to  avail  the  tenant :  a  mere  notice  from  a  claimant  to 
the  tenant  to  pay  him  rent,  or  a  promise  by  the  tenant  to  pay 
it,  would  not  be  sufficient ;  though  it  seems  to  be  sufficient,  as 

i  Agar  V.  Young,  1  C.  &  M.  78;  Mountnoy  v.  Collier,  1  E.  &  B.  630,  636,  639, 
even  though  tenant  has  not  surrendered  possession  to  the  lessor,  under  whom  he 
entered.     Anderson  v.  Smith,  63  111.  126. 

2  Hilbourn  v.  Fogg,  99  Mass.  11,  where  assignee  of  a  lessor  who  was  himself 
tenant  at  will  sued  tenant.  S.  P.  Palmer  v.  Bowker,  106  Mass.  317.  Reckhow 
V.  Schanck,  43  N.  Y.  448 ;  Dingley  v.  Buffum,  57  Me.  381 ;  Cunningham  v.  Hol- 
ton,  55  Me.  33 ;  Tewksbury  v.  Magraff,  33  Cal.  237. 

8  Miller  v.  Lang,  99  Mass.  13 ;  Tewksbury  v.  Magraff,  33  Cal.  237 ;  Ilawes 
V.  Shaw,  100  Mass.  189.  But  see  Hoag  v.  Hoag,  35  N.  Y.  471,  and  Jackson  v. 
Harrington,  9  Cowen,  86,  and  Bigler  v.  Furman,  58  Barb.  555. 

*  Lowe  V.  Emerson,  48  111.  160. 

5  Franklin  v.  Palmer,  50  111.  202 ;  Tewksbury  v.  Magraff,  33  Cal.  237  ;  Shields 
V.  Lozear,  34  N.  J.  496. 

6  Ryerson  v.  Eldred,  18  Mich.  22 ;  Tewksbury  v.  Magraff,  33  Cal.  237. 
1  Hawes  v.  Shaw,  100  Mass.  189. 


CH.  X.  §  9.]  ESTATES    FOR    YEARS.  569. 

has  alread}'-  been  stated,  if  one  having  good  right  to  eject  the 
tenant,  and  is  about  to  do  it,  the  tenant,  to  save  being  ejected, 
in  good  faith  consents  to  hold  of  the  claimant.^  The  doctrine 
of  estoppel,  as  above  treated  of,  continues  as  long  as  the  tenant 
continues  to  occupy,  and  is  not  limited  to  the  term  created  by 
the  lease.2  And  the  doctrine  of  estoppel  applies  where  one  is 
in  possession  by  mere  license.^ 


SECTION  IX. 

OF  DISCLAIMER   OF   LESSOR'S   TITLE. 

1.  Common-law  effect  of  disclaimer  by  lessee. 

2.  Effect  of  disclaimer  as  to  the  statute  of  limitations. 

3.  American  law,  that  a  disclaimer  works  no  forfeiture. 

4.  No  hostile  act  of  tenant  affects  lessor  without  notice. 

1.  Questions  have  ari.sen  under  leases  as  to  the  effect  of  a 
disclaimer  by  a  tenant  of  his  tenancy,  and  a  denial  of  his  land- 
lord's title.  Thus  it  is  said,  "  Any  act  of  the  lessee,  by  which 
he  disaffirms  or  impugns  the  title  of  his  lessor,  occasions  a  for- 
feiture of  his  lease,  for  to  every  lease  the  law  tacitly  annexes  a 
condition,  that,  if  the  lessee  do  any  thing  that  may  affect  the 
interest  of  the  lessor,  the  lease  shall  be  void,  and  the  lessor  may 
re-enter."*  So  it  is  implied  in  "Wall  v.  Goodenough,^  and 
sustained  by  the  doctrine  of  the  cases  cited  below,  that  "  the 
effect  of  a  disclaimer,  disseisin,  or  an  attornment  to  an  adverse 
claimant,  or  collusion  with  him  to  deliver  possession,  as  be- 
tween landlord  and  tenant,  and  those  claiming  under  such  ten- 
ant, unless  a  descent  cast  by  death  of  disseisor,  would  be  a 
forfeiture  of  the  term,  and  the  landlord  might  enter  or  bring 

1  Lowe  V.  Emerson,  48  111.  160 ;  Hawes  v.  Shaw,  100  Mass.  189  ;  Delaney  v. 
Fox,  2  C.  B.  N.  s.  775  ;  Mayor,  &c.  v.  Whitt,  15  M.  &  W.  577  ;  Sliields  v.  Lozear, 
34  N.  J.  496 ;  Claridge  v.  McKensie,  4  M.  &  G.  154. 

2  Tewksbury  v.  Magraff,  sup. ;  Uelaney  v.  Fox,  2  C.  B.  n.  s.  775. 
8  Glynn  v.  George,  20  N.  H.  114. 

*  Woodfall,  Land.  &  Ten.  1-50.     See  Bacon,  Abr.  Lease,  T.  2;  Smith,  Land.  & 
Ten.  233 ;   Willison  v.  Watkins,  3  Pet.  48-52,  per  Baldwin,  J. 
6  Wall  V.  Goodenough,  16  111.  415. 


570  LAW   OP   REAL    PROPERTY".  [BOOK   I. 

ejectment  or  forcible  detainer."  ^  But  it  has  been  held  in 
Wisconsin,  that  accepting  a  deed  in  fee  by  the  tenant  of  the 
premises,  from  one  who  is  not  his  lessor,  does  not  work  a  for- 
feiture of  his  rights  as  lessee.^ 
[*363]  *  2.  So  far  as  the  doctrine  of  the  cases  cited  relates 
to  questions  under  the  statute  of  limitations,  involv- 
ing the  inquiry  as  to  when  an  adverse  possession  on  the  part 
of  a  tenant  began,  the  rule  as  above  stated  may  be  assumed 
to  be  good  law.^  So  it  would  be  in  cases  of  tenancies  at  will,* 
and  in  such  cases  as  require  a  formal  demand  of  rent  before 
commencing  legal  proceedings ;  such  adverse  claim  would  be 
a  waiver  of  the  right  to  such  notice.^ 

3.  But  the  doctrine  of  these  cases  does  not  seem  to  be  war- 
ranted, as  a  general  proposition  of  law,  where  the  demise 
is  made  by  a  written  lease  for  a  term  of  years.  In  several  of 
the  States,  by  statute,  the  conveyance  by  a  lessee  of  a  greater 
estate  than  he  himself  has,  does  not  work  a  forfeiture.  The 
grantee  becomes  in  such  case,  in  effect,  the  assignee  of  the 
lessee.  And  such  would  be  the  ordinary  effect  of  the  forms 
of  conveyance  in  this  country.^  The  language  of  Patteson, 
J.,  in  Doe  v.  Wells,  is  also  to  that  effect :  "  No  case  has  been 
cited  where  a  lease  for  a  definite  term  has  been  forfeited  by 
mere  words."  "^  So  it  has  been  held  that  a  parol  disclaimer 
of  a  landlord's  title  by  the  tenant  does  not  work  a  forfeiture  of 
a  written  lease  for  a  term  of  years,  even  though  he  set  up,  by 

1  Greene  v.  Munson,  9  Vt.  37 ;  Wild's  Lessee  v.  Serpell,  10  Gratt.  405 ;  North 
V.  Barnum,  10  Vt.  220;  4  Kent,  Cora.  106;  Jackson  v.  Vincent,  4  Wend.  633; 
Wadsworthville  School  v.  Meetze,  4  Rich.  (S.  C.)  50.  It  has  been  held  that  if 
the  lessee  conveys  in  fee  it  is  a  disclaimer  of  tenancy,' and  the  landlord  may  sue 
for  the  land  before  the  expiration  of  the  lease,  and  without  notice  to  quit.  See 
also  Fusselman  v.  Worthington,  14  111.  135.  In  Fortier  i;.  Ballance,  5  Gilra. 
41,  the  lessee  of  a  term  for  years  attorned  to  a  stranger,  and  denied  the  land, 
lord's  title,  and  claimed  to  hold  under  the  title  of  the  stranger.  The  Court  said  : 
''  The  moment  that  Blump  (the  lessee)  disavowed  the  title  of  Ballance  (lessor) 
and  claimed  to  set  up  a  hostile  title  in  Fortier  (the  stranger),  the  lease  became 
forfeited,  and  the  lessor's  right  of  entry  complete." 

2  Rosseel  v.  Jarvis,  15  Wis.  577.  3  Duke  v.  Harper,  6  Yerg.  280. 

*  Graves  v.  Wells,  10  A.  &  E.  427 ;  Jackson  v.  Bryan,  1  Johns.  322 ;  Doe  v. 
Long,  9  Car.  &  P.  773 ;  Newman  v.  Rutter,  8  Watts,  51. 

5  Jackson  v.  Collins,  1 1  Johns.  1 ;  Jackson  v.  Wheeler,  6  Johns.  272. 

6  4  Kent,  Com.  106.  ">  Graves  v.  Wells,  10  A.  &  E.  427. 


CH.  X.  §  9.]  ESTATES   FOR   YEARS.  571 

parol,  an  adverse  claim  in  himself.^  In  Alabama  it  has  been 
held,  that  a  tenant  for  years  cannot  affect  the  rights  of  his 
landlord  by  attorning  to  and  taking  a  new  lease  from  a  third 
party.2 

4.  One  thing  in  respect  to  a  tenant's  disclaimer  of 
his  *  landlord's  title  seems  to  be  well  settled.  He  [*364] 
cannot  set  up  an  adverse  claim  which  may  operate  to 
bar  his  lessor's  title  by  adverse  possession  under  the  statute  of 
limitations,  until  he  shall  have  expressly  disaffirmed  such  title 
of  his  lessor,  and  given  him  full  notice  that  he  claims  to  hold 
adversely  thereto.^  Without  such  notice,  the  law  will  pre- 
sume the  tenant  holds  in  accordance  with  the  demise  under 
which  he  entered.*  And,  as  a  general  proposition,  the 
owner  in  fee  of  land  cannot  be  disseised  by  his  tenant, 
but  at  his,  the  owner's,  election.^  But  an  omission  to  pay 
rent  for  a  long  period  of  time  may  be  evidence  from  which 
a  jury  may  infer  a  dissolution  of  the  relation  of  landlord  and 
tenant.®  And  no  notice  is  necessary  in  such  case  of  dis- 
claimer in  Indiana  before  suing  ejectment.'' 

1  De  Lancey  v.  Ga  Nun,  12  Barb.  120 ;  and  s.  c.  fully  and  elaborately  consid- 
ered in  Court  of  Appeals,  5  Seld.  9;  Doe  v.  Cooper,  1  Mann.  &  G.  135;  Mont- 
gomery V.  Craig,  3  Dana,  101.  Russell  v.  Fabyan,  34  N.  H.  223.  See  also  a  dic- 
tum in  Jackson  v.  Collins,  11  Johns.  5.  In  Newman  v.  Rutter,  8  Watts,  55,  the  court 
hold  that  the  doctrine  under  consideration  only  applies  where  there  is  no  dispute 
as  to  the  person  entitled  to  the  rent. 

2  Doe  V.  Reynolds,  27  Ala.  37G. 

3  Greene  v.  Munson,  9  Vt.  37 ;  North  v.  Barnum,  10  Vt.  220 ;  Willison  v. 
Watkins,  3  Pet.  49;  McGinnis  v.  Porter,  20  Penn.  St.  80;  Lea  v.  Netherton,  9 
Yerg.  315;  Zeller  v.  Eckert,  4  How.  289 ;  Sherman  v.  Champlain  Trans.  Co.,  31 
Vt.  177.  The  effect  of  an  express  disclaimer,  by  the  tenant,  of  the  landlord's 
title  in  laying  the  foundation  for  an  action  by  the  latter  to  eject  him  as  a  dis- 
seisor, as  well  as  its  effect  upon  the  landlord's  claim  to  recover  rent,  has  been 
considered.     Ante,  p.  *361 ;  Colvin  v.  Warford,  20  Md.  396. 

*  Bedford  v.  M'Elherron,  2  S.  &  R.  49 ;  Jackson  v.  Wheeler,  6  Johns.  272. 

5  Stearns  v.  Godfrey,  16  Me.  158. 

6  Whaley  v.  Whaley,  1  Speers,  225 ;  Duke  v.  Harper,  6  Yerg.  280 ;  Drane  v. 
Gregory,  3  B.  Mon.  619. 

1  Den  V.  Lloyd,  30  N.  J.  Law,  399. 


672  LAW   OF   EEAL  PEOPERTY.  [BOOK   1. 

SECTION  X. 

LETTING  LANDS   UPON   SHARES. 

1.  Nature  of  this  contract. 

2.  Landlord  and  occupant  own  crops  in  common. 

3.  AVhen  payment  in  grain,  &c.,  makes  a  lease. 

3  a.  Letting  for  a  year  a  tenancy,  though  rent  payable  in  grain. 

4,  5.  Cases  when  a  tenancy  in  common  or  a  lease. 

6.  Case  of  tenancy  in  common  of  crops. 

7.  Letting  ou  shares,  law  considered  in  Moulton  v.  Robinson. 

1.  There  is  a  mode  of  letting  lands,  not  unusual  in  the 
country,  where  the  tenant  is  to  cultivate  them,  and  share  the 
crops  with  his  landlord.  In  respect  to  these  tenancies,  many 
of  the  ordinary  rules  heretofore  explained  do  not  apply,  and 
the  rights  of  the  parties,  moreover,  depend  much  upon  the 
particular  terms  of  their  agreement.  Thus,  if  it  amounts  only 
to  an  agreement  on  the  part  of  the  one  who  is  to  do  the  labor 
to  take  charge  of  and  manage  the  land  on  shares,  it  is  not 
regarded  as  a  lease,  but  more  in  the  nature  of  a  payment  for 
services  rendered  by  a  part  of  the  crops  raised.^  In  order  to 
constitute  a  lease,  the  occupant  must  have  an  interest  in  the 

soil  and  freehold.^  So  it  is  said,  a  letting  of  lands 
[*  365]  upon  shares,  if  for  a  *  single  crop,  is  no  lease  of  the 

land,  and  the  owner  alone  must  bring  trespass  for 
breaking  the  close.  And  the  same  rule  prevails  if  it  be  for 
successive  crops.^ 

2.  But  if  the  agreement  be  for  a  division  of  the  specific 
crops,  the  owner  of  the  land  and  the  occupant,  in  the  above 
supposed  case,  are  to  be  regarded  as  tenants  in  common  of 
these  crops.  And  although  called  a  rent,  it  is,  after  all,  but 
another  mode  of  saying  that  the  occupiers  shall  work  the  farm 


1  Tanner  v.  Hills,  48  N.  Y.  662  ;  Steel  v.  Frick,  56  Penn.  St.  172. 

2  Maverick  v.  Lewis,  3  McCord,  211  ;  Fry  v.  Jones,  2  Rawle,  12 ;  Adams  v. 
McKesson,  53  Penn.  St.  83  ;  Herskell  v.  Bushnell,  37  Conn.  43. 

3  Bradish  v.  Schenck,  8  Johns.  151 :  Putnam  v.  Wise,  1  Hill,  234.  See  Chan- 
dler V.  Thurston,  10  Pick.  205  ;  Hare  v.  Celey,  Cro.  Eliz.  143  ;  Moulton  v.  Robin- 
eon,  7  Fost.  550-557  ;  Aiken  v.  Smith,  21  Vt.  181. 


CH.  X.  §  10.]  ESTATES   FOR   TEARS.  573 

for  SO  long,  and  divide  the  profits  with  the  owner.^  The  doc- 
trine upon  this  subject  may  be  stated,  as  gathered  from  a 
variety  of  cases,  in  general  terms,  to  be,  that  farming  on  shares 
makes  the  owner  of  the  land  and  the  farmer  tenants  in  com- 
mon of  the  crops.2  Thus,  a  contract  by  which  A  should  have 
possession  of  B's  farm,  and  put  in  crops  upon  shares,  makes 
them  tenants  in  common  of  the  crops,  and  A  may  sell  or  mort- 
gage his  share  in  the  crops. ^  So  where  the  owner  of  the  farm 
was  to  furnish  teams  and  fodder  for  them,  seed  and  farming 
implements,  and  the  other  party  to  do  the  work,  cultivate  and 
secure  the  crops,  and  these  were  to  be  divided  between  them 
in  certain  shares  or  proportions,  it  was  held  to  constitute  a 
tenancy  in  common  of  the  crops,  and  not  a  demise  of  the 
premises."*  Nor  would  it  change  the  rule  in  this  respect, 
although  the  land-owner  let  the  land  for  a  year  to  the  other 
party,  to  "  work  on  shares,"  and  agreed  to  furnish  a  certain 
portion  of  the  requisite  teams  and  farming-tools  and  seed,  the 
other  to  do  the  work  of  cultivating  the  premises,  and  to  be 
paid  by  the  owner  "  the  value  of  one-half  of  all  the  grain, 
butter,  &c.,  produced  upon  the  premises."  They  were  held 
to  be  tenants  in  common  of  the  crops.^ 

3.  But  if  the  occupant  is  to  pay  a  certain  quantity  of  grain, 
or  tons  of  hay,  &c.,  for  the  premises,  not  confined  to  the  spe- 
cific crops  grown  thereon,  he  is  a  tenant,  and  the  grain  or 
hay  is  rent,  and  the  owner  of  the  land  has  no  interest  in  or 


1  Putnam  v.  Wise,  1  Hill,  234  ;  Chandler  v.  Thurston,  10  Pick.  205  ;  Dinehart 
V.  Wilson,  15  Barb.  595;  Alwood  r.  Ruckman,  21  111.200;  Daniels  v.  Brown,  34 
N.  H.  454;  Esdon  v.  Colburn,  28  Vt.  631.  And  the  cultivator  may  assign  his 
interest  in  such  crops,  making  his  assignee  co-tenant  of  them  with  the  land- 
owner. Aiken  v.  Smith,  21  Vt.  182.  And  where  the  tenant  was  to  cultivate 
and  bag  the  hop  crop  on  the  farm  for  the  landlord  as  rent  for  the  farm,  it  was 
held  that  the  hops  were  the  sole  property  of  the  land-owner.  Kelley  v.  Weston, 
20  Me.  232 ;  Brown  v.  Lincoln,  47  N.  H.  469 ;  Harris  v.  Frink,  49  N.  Y.  31. 

2  Williams  v.  Nolen,  34  Ala.  167  ;  Hurd  v.  Darhng,  14  Vt.  214 ;  Aiken  v. 
Smith,  21  Vt.  172 ;  Lowe  v.  Miller,  3  Gratt.  205 ;  Ferrall  v.  Kent,  4  Gill,  209 ; 
Moore  v.  Spruill,  13  Ired.  55  ;  Smyth  v.  Tankersley,  20  Ala.  212 ;  Tripp  v.  Riley, 
15  Barb.  333 ;  Otis  v.  Thompson,  Hill  &  Denio,  131 ;  Walls  v.  Preston,  25  Cal. 
59,  64;  Guest  v.  Opdyke,  30  N.  J.  (Law),  554;  Bernal  v.  Hovious,  17  Cal.  546; 
Creel  v.  Kirkham,  47  111.  344. 

8  Piquet  V.  Allison,  12  Mich.  330.  *  Currey  v.  Davis,  1  Housl.  698. 

5  Tanner  v.  Hills,  44  Barb.  428. 


574  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

title  to  the  same  until  they  are  delivered.^  In  all  cases, 
"  whether  it  is  simply  raising  a  crop  on  joint  account,  or  a 
tenancy,  the  rent  payable  in  kind,  depends  upon  the  intention 
of  the  parties.'*  ^ 

3  a.  So  if  the  letting  be  for  a  year,  it  creates  the  relation 
of  landlord  and  tenant,  although  the  rent  be  to  be  paid,  in 
part,  in  crops.  The  parties  in  such  a  case  are  not  tenants  in 
common.^  But  it  was  held  to  be  a  demise,  and  the  tenant 
had  the  rights  of  a  lessee,  although,  by  the  contract,  the 
lessor  was  to  be  paid  the  rent  out  of  the  specific  crops  raised 
upon  the  premises.*  Such  a  tenant,  moreover,  is  entitled  to 
sole  possession,  and  may  have  trespass  against  his  landlord 
for  entering  during  the  term.^  And  where  the  lease  was  for 
a  year,  the  tenant  being  to  deliver  the  half  of  the  grain  that 
he  raises  on  the  farm  in  the  bushel  in  the  barn,  it  was  held 
that  there  must  be  a  division  and  delivery  to  vest  the  prop- 
erty in  the  grain  in  the  landlord.  And  it  is  laid  down  as  a 
general  principle,  that  where  the  rent  of  a  farm  is  payable  in 
grain  raised  upon  it,  such  division  and  delivery  are  necessary 
to  pass  the  property  from  the  tenant  to  the  landlord.  And 
in  one  case,  the  lessee  having  divided  the  grain  and  carried 
off  his  half  of  it,  leaving  the  other  half  upon  the  premises, 
the  property  passed  to  the  landlord.^  Accordingly,  in  one 
case,  where  the  lessor  was,  by  the  terms  of  the  lease,  to  re- 
ceive as  rent  a  share  of  the  grain  raised,  to  be  delivered  in 
the  bushel,  it  was  held  he  had  no  interest  in  the  grain  until 
it  was  severed  and  delivered  to  him.''     But,  in  another  case, 

1  Newcomb  v.  Earner,  2  Johns.  421,  note  ;  Dinehart  v.  Wilson,  15  Barb.  595; 
Putnam  v.  Wise,  1  Hill,  234.  See  also  Caswell  v.  Districh,  15  Wend.  379.  The 
eflfect  of  the  three  last-cited  cases  is  to  overrule  Jackson  v.  Brownell,  1  Johns. 
267,  and  Stewart  v.  Doughty,  9  Johns.  108,  the  latter  of  which  had  already  been 
doubted  in  Aiken  v.  Smith,  21  Vt.  181.  But  Jackson  v.  Brownell  is  spoken 
of  with  approbation  by  Bell,  J.,  in  Moulton  v.  Robinson,  7  Fost.  (N.  H.)  553; 
Herskell  v.  Bushnell,  37  Conn.  43. 

2  Dixon  V.  Niccolls,  39  111.  384,  386. 

3  Alwood  V.  Ruckman,  21  111.  200.  *  Wells  v.  Preston,  25  Cal.  59,  67. 

8  Hatchell  v.  Kinsbrough,  4  Jones  (N.  C.)..  163.  See  also  Blake  v.  Coats,  3 
Greene  (Iowa),  548. 

6  Bums  V.  Cooper,  31  Penn.  St.  426. 

7  Rinehart  v.  Olwine,  5  W.  &  S.  157,  163.  See  Ream  v.  Hamish,  45  Penn. 
St.  379. 


CH.  X.  §  10.]  ESTATES   FOR   YEARS.  575 

where  upon  a  lease  of  premises  for  one  crop,  or  one  year,  or 
for  several  years,  the  lessor  was  to  receive  a  part  of  the  prod- 
ucts of  the  farm  in  lieu  of  rent,  it  was  held  that  the  contract 
operated  by  the  way  of  reservation,  and  the  share  reserved 
was  always  the  property  of  the  land-owner  without  severance 
or  deliver}^,  while  the  property  of  the  residue  was  always  in 
the  tenant  by  virtue  of  the  implied  grant  of  profits,  and  they 
were  therefore  tenants  in  common  of  the  crops  until  division.^ 
And  if  the  crops  or  any  share  of  them  are  to  be  used  upon 
the  farm,  the  general  property  in  them  remains  in  the  owner 
of  the  land,  though  the  possession  remains  in  common  with 
the  owner  and  tenant  of  the  land.^ 

4.  It  was  accordingly  held  not  to  be  a  lease  of  the  land, 
but  tenancy  in  common  of  the  crops,  where  A  let  his  farm  for 
one  year  for  a  single  crop  to  B,  who  was  to  sow  certain  lots 
with  oats,  others  with  wheat,  and  to  give  A  one-third  in  the 
half-bushel,  the  meadow,  three  out  of  five  cocks,  and,  of  the 
rest,  one-half,  delivered  in  the  barn.  These  were  not  in 
the  light  of  rent,  for,  if  so,  they  would  belong  wholly  to  the 
tenant,  till  severed  and  divided  to  the  landlord,  which  was 
not  the  case  here.^ 

*  5.  But  where  the  agreement  recognized  the  crops  [*366] 
to  be  the  lessee's,  though  he  is  out  of  these  to  pay  the 

rent  of  the  premises,  or  the  lessor  is  to  have  a  lien  upon  them 
as  security  for  the  rent,  as  if  the  general  property  in  them  was 
in  the  lessee,  it  seems  to  be  a  letting,  and  to  create  the  relation 
of  landlord  and  tenant,  the  property  in  the  crops  being  the 
lessee's  alone  until  divided  and  delivered  to  the  lessor.*    And 

1  Hatch  V.  Hart,  40  N.  H.  98 ;  Brown  v.  Lincoln,  47  N.  H.  469. 

2  Hatch  V.  Hart,  40  N.  H.  98 ;  Moulton  v.  Robinson,  27  N.  H.  550.  These 
cases,  and  some  that  follow,  are  given  without  any  attempt  at  reconciling  them. 
They  serve  to  show  how  difficult,  if  not  impossible,  it  is  to  lay  down  any  gene- 
ral uniform  rule  upon  the  subject.    Jordan  v.  Staples,  57  Me.  355. 

8  Caswell  V.  Districh,  16  "Wend.  379  ;  Foote  v.  Colvin,  3  Johns.  216  ;  Bradish 
V.  Schenck,  8  Johns.  161 ;  Bishop  v.  Doty,  1  Vt.  37 ;  Dinehart  v.  Wilson,  15  Barb. 
595. 

*  Dockham  v.  Parker,  9  Greenl.  187 ;  Bailey  v.  Fillebrown,  9  Greenl.  12;  But- 
terfield  v.  Baker,  5  Pick.  522 ;  Fry  v.  Jones,  2  Rawle,  11 ;  Briggs  v.  Thompson, 
9  Penn.  St.  338 ;  Munsell  v.  Carew,  2  Cush..50.  And  in  such  case,  though  the 
agreement  be  that,  if  tenant  fail  to  pay  the  rent,  the  crops  are  to  be  the  lessor's, 
and  he  may  dispose  of  them ;  until  they  are  actually  delivered  to  the  lessor, 


576  LAW    OF    REAL    PROPERTY.  [bOOK    L 

in  some  of  the  States  it  has  been  held,  that  where  "the  owner 
of  the  land  has  let  it  to  another  to  make  a  crop  of  grain  upon 
it,  the  latter  to  give  the  former  a  share  of  the  crop  as  rent,  the 
agreement  constitutes  the  parties  landlord  and  tenant.'  And 
the  law  is  thus  stated  in  one  case :  If  one  is  hired  to  work  lands 
and  get  a  crop,  to  be  compensated  by  a  share  of  the  same,  he 
has  no  legal  possession  beyond  the  right  to  do  the  work.  But 
if  the  farm  be  let  for  a  year  to  a  tenant  to  cultivate  and  retain 
a  part  of  the  produce,  it  makes  him  a  lessee  entitled  to  pos- 
session, and  liable  in  Pennsylvania  to  be  distrained  for  rent,- 

6.  In  Ross  V.  Swaringer,^  the  land-owner  agreed  with  Ross 
by  parol  to  lease  to  him  a  parcel  of  land  for  one  year ;  he  to 
furnish  two  horses  to  work  in  the  crop,  and  their  necessary 
food ;  and  the  land-owner,  for  rent,  to  have  half  the  crop, 
and  out  of  the  residue  enough  to  pay  certain  claims  he  had 
against  Ross.  It  was  held  that  the  title  to  the  crop  was  in 
Ross,  and  the  land-owner  had  no  right  to  take  it  against  his 
will. 

It  is,  after  all,  difficult,  if  not  impossible,  to  fix  any  rule  by 
which  to  determine  whether  carrying  on  a  farm  by  one  not 
the  owner,  upon  shares,  constitutes  him  a  tenant  with  a  sepa- 
rate right  of  property  in  the  crops,  or  makes  him  a  tenant  in 
common  of  the  crops,  without  being  lessee  of  the  land,  or  a 
mere  cropper,  or  hired  laborer,  to  do  work  for  compensation, 
to  be  derived  out  of  the  crops,  and  especially  to  fix  any  one 
rule  which  will  apply  to  all  the  States.  A  case  in  Massachu- 
setts serves  to  illustrate  the  doubtful  character  of  the  relation 
in  a  similar  case.  Fitts  agreed  with  Walker,  the  land-owner, 
in  writing,  to  carry  on  his  farm  for  one  season,  each  party  to 
furnish  half  the  seed,  Fitts  to  sow  it,  and  deliver  one-half,  &c., 
in  the  barn,  for  the  owner.  The  court  say  it  was  not 
[*367]  *  a  contract  of  hire,  nor  a  mere  license  to  enter  and 
cultivate  the  farm,  nor  a  tenancy  at  will.     While  they 

they  are  subject  to  sale  or  attachment  as  the  property  of  the  lessee.  Deaver  v. 
Rice,  4  Dev.  &  Bat.  431 ;  Ross  v.  Swaringer,  9  Ired.  481 ;  Keltey  v.  Weston,  20 
Me.  232. 

1  Hoskins  v.  Rhodes,!  Gill  &  J.  266;  Hatchell  v.  Kimborough,  4  Jones  (N.  C.) 
163. 

2  Steel  V.  Frick,  56  Penn.  St.  172 ;  see  also  Herskell  v.  Bushnell,  37  Conn.  43. 
•»  Ross  V.  Swaringer,  9  Ired.  481. 


CH.  X.  §  10.]  ESTATES    FOR   YEARS.  677 

held  the  parties  tenants  in  common  of  the  crops,  they  say, 
"  What  the  precise  nature  and  character  of  his  (Walker's) 
interest  (in  the  land)  was,  is  not  so  easily  determined."  ^  But 
where  half  the  hay  was  to  be  spent  upon  the  farm,  and  the 
other  half  divided  between  lessor  and  lessee,  the  court  of 
Maine  held  that  the  legal  property  of  the  whole  was  in  the 
lessee  until  division  had  been  made.^  But  where  the  lessee 
upon  shares  was  to  feed  out  the  hay  to  the  lessor's  stock,  who 
was  to  have  what  remained,  if  any,  it  was  held  that  the  hay 
was  the  lessor's,  and  he  might  have  trespass  against  a  third 
person  who  carried  away  any  part  of  it  even  by  the  consent  of 
the  lessee.^  So  where  A  and  B  agreed  that  B  should  carry  on 
A's  farm,  and  give  him  a  certain  share  of  the  crops,  stocked 
in  the  field,  for  A's  use,  but  instead  of  that  B  carried  off  the 
entire  crop,  he  was  held  to  be  a  trespasser  in  so  doing,  since 
he  had  no  lease  of  the  estate,  and  the  crops  were  construc- 
tively in  the  possession  of  A.  B  had  only  a  license  to  do 
what  he  agreed  to  do,  and  was  liable  in  trespass  de  bonis  for 
carrying  off  the  crops.*  In  this  connection  it  seems  proper  to 
add,  that  whatever  manure  is  made  by  the  consumption  of 
the  products  of  leased  premises  becomes  the  property  of  the 
landlord,  though  lying  in  heaps,  and  made  by  the  cattle  of  the 
tenant  from  crops  which  belonged  to  him  till  consumed,^  even 
though  the  tenant  be  at  will  only.^  But  this  does  not  apply 
to  tenants  of  other  than  agricultural  premises  in  respect  to 
any  manure  made  thereon,  as  in  livery-stables  and  the  like.'^ 
7.  This  subject  is  fully  and  ably  discussed  by  Bell,  J.,  in 

1  Walker  c.  Fitts,  24  Pick.  191.  See  Lewis  v.  Lyman,  22  Pick.  437,  where 
the  court  say,  "  The  part  of  the  produce  wliich  was  granted  by  the  plaintiff  (the 
owner  of  the  land)  was  in  the  nature  of  wages  for  services,  so  that  all  tlie  prod- 
uce, except  that  part  whicli  was  granted  to  the  tenants,  became  and  remained 
the  property  of  the  plaintiff."     Delaney  v.  Root,  99  Mass.  550. 

2  Symonds  v.  Hall,  37  Me.  354. 
8  Jordan  v.  Staples,  57  Me.  355. 

*  Warner  t;.  Hoisington,  42  Vt.  94. 

6  Lassell  v.  Eeed,  6  Greenl.  222  ;  Middlebrook  v.  Corwin,  15  Wend.  169 ; 
Lewis  V.  Jones,  17  Penn.  St.  262;  Plumer  v.  Plumer,  10  Fost.  (N.  H.)  558; 
Daniels  v.  Pond,  21  Pick.  367  ;  Lewis  v.  Lyman,  22  Pick.  437 ;  Hill  v.  De  Roch- 
mont,  48  N.  H.  88. 

«  Perry  v-  Carr,  44  N.  H.  118. 

7  Needham  v.  Allison,  4  Fost.  (N.  H.)  355  ;  Plumer  v.  Plumer,  10  Fost.  (N.  H.) 
558. 

VOL.  I.  87  • 


678  LAW   OP   EEAL   PROPERTY.  [bOOK   I. 

Moulton  V,  Robinson,  who  says  it  is  vain  to  seek  in  the  recent 
Looks  of  the  English  common  law  for  the  rules  which  are  to 
regulate  the  rights  of  landlord  and  tenant  in  the  cases  above 
referred  to,  since  the  "  letting  on  shares  "  of  farming  property 
seems,  to  a  great  extent,  unknown  there.  He  holds  that,  where 
there  is  a  letting  with  a  reservation  of  part  of  the  profits,  it 
cannot  be  regarded  as  rent,  while  it  is  a  reservation  of  a  share 
of  the  crops  themselves,  which  remains  the  lessor's  during  the 
whole  time  it  is  growing,  it  being  much  the  same  as  if  one  of 
two  tenants  in  common  should  hire  his  co-tenant  to  carry  on 
his  half  of  the  common  property.  And  that  in  such  a  letting 
on  shares,  the  lessee,  so  far  as  the  possession  of  the  land  is 
concerned,  is  properly  the  tenant  as  against  his  land- 
[*3G8]  lord,  as  well  as  others,  and  the  *  property  in  the  resi- 
due of  the  crops,  not  reserved  by  the  lessor,  is  the 
tenant's  also.  And  for  an  injury  to  these  the  lessor  and  lessee 
must  join.  Several  other  points  are  discussed  in  the  opinion 
given,  but  the  above  illustrate  the  view  of  the  court  upon  the 
point  now  under  consideration.^ 

1  Moulton  V.  Robinson,  7  Fost.  (N.  H.)  551-5G7.  The  case  is  reaflBrmed  in 
Daniels  v.  Brown,  34  N.  H.  454.  See  Co.  Lit.  142  a ;  id.  47  a,  and  Bracton 
there  cited ;  see  47  N.  H.  468. 


CH.  X.  §  11.]  ESTATES   FOR   TEARS.  579 

SECTIOJ^  XL 

OF   DESCENT   AND   DEVISES    OF   TERMS. 

1.  Terms  may  be  devised,  or  go  to  executors,  &c. 

2.  A  term  may  take  eflfect  as  a  devise  after  a  freehold. 

3.  Will  not  pass  as  an  estate  tail. 

1.  From  the  chattel  character  of  terms  for  years,  it  is  hardly 
necessary  to  add  that  they  may  be  devised  or  disposed  of  in 
payment  of  debts  by  an  executor  or  administrator,  and  when 
devised  they  pass  without  any  formal  assignment.^  Such  term 
for  years  passes  to  the  administrator  of  the  lessee  for  the  bene- 
fit of  his  estate,  and  he  cannot  give  it  up,  and  take  a  new  lease 
to  himself.2 

2.  And  a  devise  of  a  term  to  A  for  life,  with  a  remainder 
over  to  B,  would  be  good  as  an  executory  devise,  although, 
theoretically,  A's  life-estate  would  be  large  enough  to  engross 
the  entire  term,  and  leave  nothing  to  pass  by  the  devise  of  a 
remainder.  Nor  could  A  do  any  thing  on  his  part  with  the 
term  which  would  prevent  its  passing  at  his  death  to  the 
remainder-man.^ 

3.  But  if  the  devise  had  been  to  A  and  the  heirs  of  his  body, 
as  there  cannot  be  an  estate  tail  in  a  chattel,  A  becomes  thereby 
the  absolute  owner  of  the  term.*  There  are  other  incidents  to 
an  estate  for  years,  among  which  are,  in  some  cases,  emble- 
ments, and  a  general  liability  on  the  part  of  the  tenant  for 
commission  of  waste.  But  as  these  subjects  have  been  con- 
sidered in  previous  chapters  of  this  work,  they  are  omitted 
here. 

1  Burton,  Eeal  Prop.  §§  931,  932.  2  Keating  v.  Condon,  68  Penn.  St.  75. 

3  Burton,  Real  Prop.  §§  946,  947.  *  Burton,  Real  Prop.  §  948. 


S80  LAW   OP  REAL   PROPERTY.  [BOOK   I. 


CHAPTER   XI. 

ESTATES    AT     WILL. 

Sect.  1.     Estates  properly  at  Will. 
Sect.  2.     Estates  from  Year  to  Year. 


[*370]  *  SECTION  I. 

ESTATES    PROPERLY  AT  WILL. 

1.  Estates  at  will  defined. 

1  a.  They  can  only  arise  by  agreement. 

2.  Their  nature  at  common  law. 

2  a.  Tenant  cannot  convey  or  assign. 

3.  Changed  by  usage  into  terms. 

4.  Estates  at  will,  and  those  determinable  by  notice. 

5.  Division  of  the  subject. 

6-8.  Estate  of  tenant  at  will,  —  how  determinable. 

9-12.  What  acts  by  lessor,  &e.,  determine  it. 

13-15.  What  acts  by  tenant  determine  it. 

16.  When  tenant  becomes  a  trespasser. 

17.  When  tenant  disclaims  holding  under  his  lessor. 
18, 19.  What  he  may  do  after  tenancy  is  determined. 

20, 21.  Landlord's  remedy  for  acts  done  by  stranger,  where  there  is  tenancy 

at  will. 

22-28.  Estates  strictly  at  will,  by  agreement,  and  by  implication. 

29.  There  may  be  a  tenancy  at  will,  though  no  rent  reserved. 

30, 31.  When  one  holding  under  contract  to  purchase  is  liable  for  rent. 

31  a.  When  the  law  implies  a  liability  for  use  and  occupation. 

32.  When  tenant  under  contract  to  purcliase  is  a  trespasser. 

33.  When  assumpsit  will  not  lie  for  rent. 

34.  Wiien  vendor  may  be  charged  rent. 

35-37.  When  notice  necessary  to  determine  a  tenancy,  and  how  long. 

38, 39.  Notice  affected  by  agreement  or  statute,  and  what  is  the  general  rule. 

40.  Estates  determine  at  the  time  agreed,  though  agreement  be  not  binding. 

41.  No  notice  necessary  in  case  of  estates  strictly  at  will. 

1.  An  estate  at  will  in  lands  is  that  which  a  tenant  has  by 
an  entry  made  thereon  under  a  demise  to  hold  during  the 


en.  XI.  §  1.]  ESTATES   AT   WILL.  581 

joint  wills  of  the  parties  to  the  same.^  It  does  not  arise  till 
actual  possession  taken  by  the  lessee,^  and  is  determinable  at 
the  will  of  either  part}^  to  the  demise.^ 

1  a.  A  tenancy  at  will  cannot  arise  without  an  actual  grant 
or  contract,  and  when  it  does  arise  the  tenant  is  entitled 
to  a  reasonable  notice  of  his  landlord's  wish  to  terminate  the 
estate  before  an  action  can  be  maintained  against  him  for  pos- 
session.* Thus  where  the  tenancy  was  to  be  for  five  years, 
unless  the  lessor  should  wish  to  build  upon  the  estate,  in  which 
case  the  lessor  was  to  quit,  is  not  a  tenancy  at  will,  but  one 
upon  condition,  and  determinable  only  by  reasonable  notice 
of  the  lessor  to  the  lessee  of  his  intention  to  build.  And  if, 
without  such  notice,  the  lessor  enters  upon  the  lessee  to  build, 
he  would  be  a  trespasser.^  And  where  a  tenant  for  life  agreed, 
by  parol,  with  the  reversioner  that  he  might  occupy  with  her 
during  her  life,  it  was  held  to  constitute  a  tenancy  at  will 
which  she  could  terminate  at  any  time  by  giving  the  notice 
required  by  statute  in  cases  of  tenancies  at  will,  whicli,  in  New 
Hampshire,  is  three  months.^  But  this  agreement  may  be  an 
implied  one,  as  when  A  by  agreement  with  B  cut  the  hay  on 
the  farm  of  the  latter  upon  shares,  and  placed  it  in  B's  barn 
to  be  divided ,  he  was  held  to  be  so  far  a  tenant  at  will  of  the 
premises,  that  he  was  at  liberty  to  enter  and  divide  the  hay 
and  remove  the  share  belonging  to  him,  without  being  a  tres- 
passer thereby.' 

2.  At  common  law,  this  was  originally  the  nature  of  all  es- 
tates created  by  demise  for  an  uncertain  period  of  time.  The 
tenant  had  no  certain  indefeasible  estate,  nothing  which  he 
could  assign,^  though  a  release  to  him  of  the  inheritance  would 
be  effectual  to  vest  such  inheritance  in  him,  because  of  the 
privity  there  was  between  him  and  the  lessor.^  But  he  could 
not  prescribe  for  a  way  or  other  easement,  as  appurtenant  to 

1  Co.  Lit.  55  a ;  Tud.  Cas.  10 ;  Smith,  Land.  &  Ten.  16. 

2  Pollock  V.  Kittrell,  2  Taylor  (N.  C),  152;  2  Flint,  Real  Prop.  215. 
8  Co.  Lit.  55  a. 

*  Blum  V.  Robertson,  24  Cal.  145 ;  Chamberlin  v.  Donahue,  45  Vt.  55. 

s  Shaw  V.  Hoffman,  25  Mich.  162.  6  Leavett  v.  Leavett,  47  N.  H.  329. 

7  Wliite  V.  Elwell,  48  Me.  SCO. 

8  2  Flint,  Real  Prop.  215 ;  Co.  Lit.  57  a  ;  Id.  270  b,  n.  223. 

9  Lit.  §  460,  n.  223 ;  2  Prest.  Abs.  26. 


582  LAW  OF  REAL  PROPERTY.  [bOOK  L 

the  premises  held  by  him,  by  reason  of  the  inadequacy  of  his 
own  estate.^ 

2  rt.  A  tenant  at  will  has  no  such  interest  or  estate  in  the 
land  in  his  possession  that  he  can  convey  it,  or  out  of  which 
he  can  create  any  estate  in  another  which  will  avail  against 
the  owner  of  the  land.  If  he  lease  it,  it  will  be  good  between 
him  and  his  lessee  so  long  as  he  is  suffered  to  enjoy  the  prem- 
ises. But  if  such  lessee  of  the  tenant  at  will  be  evicted  by  a 
superior  title,  he  will  be  released  thereby  from  rent  falling 
due  after  such  eviction,  and  may  defend  against  a  covenant 
in  his  lease  by  way  of  recoupment  for  a  breach  of  his  lessor's 
covenant  for  quiet  enjoyment.^  If,  therefore,  a  tenant  at  will 
assign  his  interest,  the  assignment  terminates  the  tenancy, 
nor  can  the  assignee  claim  the  rights  of  the  tenant  at  will 
against  the  original  lessor.^  The  above  doctrine  is  also  adopt- 
ed by  the  courts  of  New  York,  and  in  the  cases  cited  below. 
In  case  of  an  assignment  or  demise  by  a  tenant  at  will  and  an 
entry  made  by  his  assignee  or  lessee,  the  original  landlord 
might  enter  upon  -him  as  a  disseisor.  He  would  have  no 
better  rights  than  a  tenant  at  sufferance,  and  no  notice  is  req- 
uisite to  determine  such  a  tenancy.  The  relation  of  landlord 
and  tenant  does  not  pass  to  the  assignee  of  the  tenant  where 
the  tenancy  is  terminated  by  the  very  act  of  transmission  of 
the  possession  by  the  tenant.*  But  if  the  lessor  sue  the 
assignee  of  the  tenant  at  will  for  rent,  or  for  use  and  occupa- 
tion, he  thereby  affirms  the  assignment,  and  makes  the  assignee 
his  tenant  at  will.  So  if  he  accept  rent  from  a  tenant  at  suf- 
ferance accruing  after  the  determination  of  the  lease.^ 

3.  It  will  hereafter  appear,  however,  that  from  an  early 
period,  in  order  to  obviate  the  inconveniences  growing  out  of 
so  precarious  a  tenure,  estates  which  at  first  were  held  to  be 
at  will,  grew,  by  usage,  into  terms  which  were  not  subject 
to  be  defeated  at  the  mere  will  of  either  party,  and  took  the 

1  2  Bl.  Com.  265.  2  Holbrook  v.  Young,  108  Mass.  85. 

3  King  V.  Lawson,  98  Mass.  309,  311. 

4  Reckhow  v.  Schanck,  43  N.  Y.  448,  451 ;  Cunningham  v.  Houlton,  65  Me. 
36  ;  Dingley  v.  Buffum,  57  Me.  381 ;  Hilbourn  v.  Fogg,  99  Mass.  12  ;  Palmer  v. 
Bowker,  106  Mass.  317. 

5  Cunningham  v.  Houlton,  55  Me.  33,  38 ;  Cunningham  v.  Horton,  57  Me.  422. 


CH.  XI.  §  1.]  ESTATES    AT   WILL.  583 

name  of  tenancies  from  year  to  year.^  And  a  tenancy  where 
no  rent  is  reserved,  and  no  time  fixed  for  determining  the  occu- 
pation, is  still  held  to  be  a  tenancy  at  will,  determinable  on 
notice.^ 

4.  There  is  still  a  class  of  estates  which  have  the  qualities 
and  properties  of  estates  at  will.  And  there  is  also  a  class  of 
estates  which,  though  not  properly  estates  from  year 

to  year,  *  cannot  be  terminated  without  notice  for  a  [*371] 
longer  or  shorter  period. 

5.  These  will  be  severally  treated  of,  by  considering,  1. 
The  incidents  and  characteristics  of  proper  estates  at  will ;  2. 
In  what  cases  such  estates  now  exist ;  3.  In  what  cases  a 
notice  to  quit  is  necessary  to  determine  an  estate  at  will ;  4. 
What  are  embraced  in  estates  from  year  to  year,  their  nature 
and  characteristics  ;  5.  The  effect  of  the  provision  of  the  first 
and  second  sections  of  the  English  statute  of  frauds,  and  the 
corresponding  American  statutes,  upon  the  creation  of  estates 
by  parol. 

6.  An  estate  at  will  is  determinable  at  the  will  of  either 
party,  although  by  the  agreement  creating  it  it  is  expressed  to 
be  at  the  will  of  one  only.^  But  where  a  lease  was  made  to 
one  and  his  heirs  for  the  term  of  one  hundred  years,  at  a  cer- 
tain rent,  with  a  right  in  the  lessee,  his  heirs  or  assigns,  to 
hold  for  as  much  longer  time  as  he  chose,  at  the  same  rent,  it 
was  held  in  one  case  to  be,  on  the  part  of  the  lessor,  a  perpetual 
lease,  but  on  that  of  the  lessee  an  estate  at  will,  after  the  ex- 
piration of  the  first-mentioned  term,*  While,  in  another  case, 
a  lease  to  one  at  an  agreed  rent,  so  long  as  he  chose  to  occupy, 
Avas  held  to  be  a  lease  at  will,  not  only  of  the  lessee,  but  of  the 
lessor  also.^  This  right,  moreover,  is  a  mere  personal  privilege  Nc 
which  he  cannot  assign  to  another.^  Still,  if  a  tenant  at  will 
were  to  let  the  premises  to  a  third  party,  who  should  enter 
upon  them  under  such  lease,  the  latter  would  not  be  admitted 

to  impugn  the  title  of  his  lessor.^  And  if  a  tenant  at  will  lets 
a  part  of  the  premises  to  a  third  party,  the  latter  becomes  a 

1  2  Prest.  Abs.  25.  2  Dame  v.  Dame,  38  N.  H.  429,  and  cases  cited. 

8  2  Flint,  Real  Prop.  216;  Co.  Lit.  55  a ;  Cheever  v.  Pearson,  16  Pick.  272. 
*  Efiinger  v.  Lewis,  32  Penn.  St.  367.  &  Doe  v.  Richards,  4  Ind.  374. 

6  Co.  Lit.  67  a.  ^  Coburn  v.  Palmer,  8  Cush.  124. 


584  LAW    OF    REAL    PROPERTY.  [BOOK    I. 

sub-tenant  to  the  tenant  at  will,  and  not  his  assignee,  and 
therefore  not  liable  to  the  owner  for  rent.^  And  though,  by 
virtue  of  his  possession,  the  tenant  may  have  trespass  quare 
clausum  f regit  against  a  stranger  for  an  injury  to  the  posses- 
Bion,2  yet,  if  he  be  wrongfully  dispossessed  and  die,  his  execu- 
tor cannot  maintain  the  statute  process  to  recover  possession 
of  the  premises,  nor  continue  an  action  which  the  tenant  had 
begun. 3 

7.  The  estate  of  the  lessor  of  a  tenant  at  will  is  not  properly 
a  reversion,  and  therefore  such  tenant  does  not  owe  fealty  by 
reason  of  his  tenancy,  nor  can  a  remainder  be  limited  upon  an 
estate  at  will.'^  In  the  words  of  Lord  Abinger,  "  A  tenant  at 
will  has  a  mere  scintilla  of  interest,  which  a  landlord  may  de- 
termine by  making  a  feoffment  upon  the  land  with  livery,  or 
by  a  demand  of  possession."  ^  A  tenant  at  will  is  entitled  to 
estovers,  and,  as  the  law  is  now  understood,  to  emblements, 
when  the  tenancy  is  determined  by  the  landlord.^  If  a  ten- 
ant at  will  plant  crops  and  abandon  the  premises  before  they 
are  ripe,  he  loses  them.  If  the  lessor  expel  him,  the  lessee 
may  claim  them  as  emblements.  Nor  can  the  lessor,  by  con- 
veying the  land  with  the  growing  crops,  affect  the  tenant's 

right  to  such  emblements.'^ 
[*372J  *  8.  A  marked  peculiarity  of  this  estate  is  the  man- 
ner in  which  it  may  be  determined  ;  any  act  or  decla- 
ration indicating  such  intention  on  the  part  of  either  party 
being  sufficient  to  put  an  end  to  it.  And  it  may  be  assumed, 
that  any  act  or  declaration  which  is  inconsistent  with  a  con- 
tinued, voluntary,  and  undisturbed  relation  of  landlord  and 
tenant,  will  determine  it.^ 

9.  In  respect  to  what  acts  may  be  sufficient  to  put  an  end 

1  Austin  V.  Thompson,  45  N.  H.  120. 

2  Hay  ward  v.  Sedgley,  14  Me.  439  ;  Little  v.  Pallister,  3  Greenl.  6;  Clark  v. 
Smith,  2-5  Penn.  St.  137  ;  2  RoUe,  Abr.  551. 

3  Ferrin  v.  Kenney,  10  Met.  2'J4. 

4  2  Flint,  Real  Prop.  222 ;  Burton,  Real  Prop.  395,  n. 
6  Ball  V.  CuUimore,  2  Crompt.  M.  &  R.  120. 

6  2  Flint,  Real  Prop.  216;  Co.  Lit.  55  b;  Davis  v.  Thompson,  13  Me.  209; 
Sherburne  v.  Jones,  20  Me.  70. 

1  Brown  v.  Thurston,  56  Me.  126. 

8  Smith,  Land.  &  Ten.  16  ;  Turner  v.  Doe,  9  M.  &  W.  643,  and  note.  Am.  ed. ; 
Walden  v.  Bodley,  14  Pet.  162. 


CH.  XI.  §  1.]  ESTATES    AT   WILL.  585 

to  such  tenancy,  it  is  stated,  in  general  terms,  that  "  any  act 
clone  upon  the  land  b}^  the  lessor,  in  assertion  of  his  title  to 
the  possession,  determines  the  will."  ^ 

10.  Thus  notice  to  quit,^  a  demand  of  possession,^  an  entry 
upon  the  land,  whether  tenant  is  present  or  not*  (but,  in 
Alabama,  an  entry  and  declaration  by  the  lessor  will  not  op- 
erate to  determine  a  tenancy  at  will,  unless  the  tenant  has 
notice  of  its  having  been  made),^  doing  any  act  on  the  prem- 
ises for  wliich  the  lessor  would  otherwise  be  liable  to  an 
action  of  trespass  at  the  suit  of  the  tenant,^  carrying  off  stone 
or  trees  from  the  premises  against  tenant's  will,'^  making  a 
feoffment  on  the  land  to  a  third  party ,^  threatening  to  take 
legal  measures  to  recover  the  land,^  or  selling,^''  or  leasing  it.^^ 
And  a  conveyance  of  the  land  by  a  landlord  to  a  stranger 
determines  a  tenancy  at  will,  and  changes  it  into  one  at  suffer- 
ance, though  made  for  the  express  purpose. ^^  And  a  written 
lease  from  the  lessor  to  a  stranger  would  have  the  same  eifect 
upon  the  original  tenancy  at  will.^-^  And  if  one  of  two  tenants 
at  will  take  a  lease  of  the  premises,  it  determines  the  lease  of 


1  Ball  V.  CuUimore,  2  Crompt.  M.  &  R.  120 ;  Eising  v.  Stannard,  17  Mass.  281. 

2  Ellis  V.  Paige,  1  Pick.  43 ;  Davis  v.  Thompson,  13  Me.  209. 

8  Doe  V.  M'Kaeg,  10  B.  &  C.  721 ;  Den  v.  Howell,  7  Ired.  496. 

*  Ball  V.  CuUimore,  3  Crompt.  M.  &  R.  120;  Curl  v.  Lowell,  19  Pick.  25; 
Moore  v.  Boyd,  24  Me.  242  ;  Turner  v.  Doe,  9  M.  &  W.  643.  If  the  act  be  an  entry 
upon  the  land,  it  must  be  done  with  an  intent  to  end  the  lessee's  estate,  which  is  to 
be  found  by  the  jury.  Holly  r.  Brown,  14  Conn.  255.  But  the  determination  of 
tlie  will  must  come  to  the  knowledge  of  the  tenant.  Davis  v.  Thomas,  6  E.  L. 
&  Eq.  487;  Rising  v.  Stannard,  17  Mass.  281. 

6  Cook  V.  Cook,  28  Ala.  660.  «*  Turner  v.  Doe,  9  M.  &  W,  643. 

T  Doe  V.  Turner,  7  M.  &  W.  226 ;  Co.  Lit.  55  b. 

8  Ball  V.  CuUimore,  2  Crompt.  M.  &  R.  120;  Rising  v.  Stannard,  17  Mass. 
286. 

9  Doe  V.  Prince,  9  Bing.  356. 

1"  Co.  Lit.  55  b,  57  a;  Jackson  v.  Aldrich,  13  Johns.  66  ;  Howard  v.  Merriam, 
5  Cush.  568 ;  Kelly  f.  Waite,  12  Met.  300 ;  Alton  v.  Pickering,  9  N.  H.  494 ;  Tud. 
Cas.  15. 

"  Hildreth  v.  Conant,  10  Met.  298.  And  though  lease  be  to  commence  at  a 
future  time,  it  determines  the  tenancy  at  will  as  soon  as  lease  takes  effect.  Tud. 
Cas.  13;  Dinsdale  v.  lies,  T.  Raym.  224;  Kelly  v.  Waite,  12  Met.  300. 

12  Curtis  V.  Galvin,  1  Allen,  215;  McFarland  v.  Chase,  7  Gray,  462;  Esty  v. 
Baker,  50  Me.  325.  See  also  Young  v.  Young,  36  Me.  133 ;  Winter  v.  Stevens, 
9  Allen,  5-30. 

^3  Pratt  V.  Farrar,  10  Allen,  519;  Clark  v.  Wheelock,  99  Mass.  15. 


586  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

his  co-tenant,  and  he  may  eject  him.^  Upon  an  alienation  by 
the  landlord  made  known  to  the  tenant,  he  becomes  a  tenant 
at  sufferance,  and  not  entitled  to  any  notice  to  quit,  nor  to 
any  action  against  the  landlord  if  he  ejects  him  without  un- 
necessary force.  But  he  would  be  entitled  to  reasonable 
notice  to  remove  himself,  his  family,  and  his  goods,  and  to 
remain  or  enter  for  that  purpose  without  being  deemed  a 
trespasser,  though  his  estate  is  determined  by  the  conveyance 
and  notice  thereof  to  him.^ 

11.  The  death  of  either  party  determines  an  estate  at  will.^ 
But  in  a  recent  case,  Kelly,  C.  B.,  uses  the  following  lan- 
guage :  "  It  would  rather  seem  that  a  tenancy  at  will  may 
continue  to  subsist  after  the  death  of  one  of  the  parties,  unless 
the  heir  or  legal  representative  shall  do  something  to  manifest 

his  intention  to  determine  the  tenancy."  ^  If  the  lessor 
[*373]  dies,  the  lessee  becomes  tenant  at  sufferance,^  *  and 

the  personal  representative  of  the  deceased  lessee  has 
no  right  to  possession  after  his  death.^  But  if  there  be  two 
lessors  or  two  lessees,  the  death  of  one  does  not  determine 
the  tenancy.''' 

12.  So  it  would  be  determined  by  a  judgment  for  posses- 
sion against  the  lessor  in  favor  of  a  stranger,  or  by  an  entry 
under  a  paramount  title,^  or  the  assignment  of  the  lessor's 
estate  under  a  process  of  insolvency  against  him.^ 

13.  Acts  by  which  the  tenant  forfeits-  or  puts  an  end  to  his 
estate  at  will  are  the  assignment  of  his  interest  to  another,^** 
or  his  conveying  the  land  itself.^^ 

»  Casey  v.  King,  98  Mass.  504.  2  Pratt  v.  Farrar,  10  Allen,  52L 

3  James  v.  Dean,  11  Ves.  391 ;  Cody  v.  Quaterman,  12  Ga.  386,  400;  Rising 
V.  Stannard,  17  Mass.  282;  Ferrin  v.  Kenney,  10  Met.  294;  Howard  v.  Merriam, 

5  Cush.  563 ;  Robie  v.  Smitli,  21  Me.  114  ;  Manchester  v.  Doddridge,  3  Ind.  360. 

4  Morton  v.  Woods,  L.  R.  4  Q.  B.  306. 

5  Reed  v.  Reed,  48  Me.  388. 

G  2  Flint,  Real  Prop.  217.  ''  Co.  Lit.  55  b. 

8  Howard  v.  Merriam,  5  Cush.  563  ;  Hill  v.  Jordan,  30  Me.  367,  in  which  the 
lessor's  mortgagee  entered  under  liis  mortgage,  thereby  determining  the  tenancy 
at  will  of  his  lessee.  2  Flint,  Real  Prop.  220  ;  Stedman  v.  Gassett,  18  Vt.  346  ; 
Hatstat  V.  Packard,  7  Cush.  245 ;  Hemphill  v.  Tevis,  4  Watts  &  S.  635 ;  Morse 
V.  Goddard,  13  Met.  177. 

9  Doe  V.  Thomas,  G  E.  L.  &  Eq.  487  ;  Tud.  Cas.  12. 

•0  Cooper  V.  Adams,  6  Cush.  87 ;  Co.  Lit.  57  a ;  Tud.  Cas.  13 ;  Smith,  Land. 

6  Ten.  17 ;  Cole  v.  Lake  Co.,  54  N.  H.  277. 
11  Den  V.  Howell,  7  Ired.  496. 


CH.  XI.  §  1.]  ESTATES   AT   WILL.  587 

14.  But  such  an  assignment  does  not,  of  itself,  put  an  end 
to  the  tenancy,  unless  the  landlord  has  notice  of  it.  Until 
then,  he  may  treat  his  lessee  as  his  tenant.^  Where,  there- 
fore, one  hired  a  house  and  was  to  pay  rent  montlily  in  ad- 
vance, and,  having  failed  to  do  so,  he  quit  without  giving  a 
month's  notice,  it  was  held  that  it  did  not  lie  in  him  to  deter- 
mine his  tenancy  by  such  failure  to  pay  the  rent  in  advance, 
without  a  regular  notice,  and  that  he  was  therefore  liable  for 
a  month's  rent  after  his  abandonment.^  He  may  treat  the 
assignee  as  his  tenant  liable  for  rent,  or  may  regard  him  as  a 
trespasser  or  disseisor  at  his  election. ^ 

J5.  If  a  tenant  at  will  abandon  the  premises,  his  estate 
ceases,  especially  if  he  declare  he  will  no  longer  hold  them.^ 

16.  Although  it  would  seem  that  a  tenant  at  will  cannot  be 
technically  chargeable  in  waste,^  if  he  do  acts  which  would 
be  voluntary  waste  in  a  tenant  for  life  or  years,  he  may  be 
treated  as  a  tresj^asser,  having  forfeited  his  estate.^ 

So  if  he  suffer  the  *  land  to  be  set  off  as  his  own  on  [*374] 
an  execution  against  him  without  disclosing  the  true 
owner,  his  estate  is  forfeited.'' 

17.  If  the  tenant  disclaim  holding  under  his  lessor,  or 
denies  his  landlord's  title, ^  or  do  acts  inconsistent  with  his 
tenure,  as  if,  being  in  possession,  he  take  a  conveyance  in  fee 
of  the  premises  from  a  third  person,  he  will  determine  his 
estate  at  the  election  of  his  landlord.^     But  the  lessee  cannot 

1  Pinhorn  v.  Souster,  20  E.  L.  &  Eq.  501 ;  s.  c.  8  'Exch.  763,  772.  But  see 
Kelly  V.  Waite,  12  Met.  300 ;  Smith,  Land.  &  Ten.  17  ;  Carpenters.  Colins,  Yelv. 
73. 

2  Sprague  v.  Quinn,  108  Mass.  554. 

8  Overman  v.  Sanborn,  27  Vt.  54  ;  Co.  Lit.  57  a ;  Smith,  Land.  &  Ten.  17. 
4  Chandler  v.  Thurston,  10  Pick.  205 ;  Smith,  Land.  &  Ten.  17. 

6  Co.  Lit.  57  a;  Smith,  Land.  &  Ten.  17. 

6  Phillips  V.  Covert,  7  Johns.  1 ;  Daniels  v.  Pond,  21  Pick.  367.  But  such  will 
not  be  the  effect  of  committing  waste  where  the  statute  requires  three  months' 
notice  to  quit.     Young  v.  Young,  36  Me.  133. 

"^  Campbell  v.  Proctor,  6  Greenl.  12. 

*  Woodward  v.  Brown,  13  Pet.  1 ;  Willison  v.  Watkins,  3  Pet.  48 ;  Currier  v. 
Earl,  13  Me.  216;  Farrow  v.  Edmundson,  4  B.  Mon.  605;  Duke  v.  Harper,  6 
Yerg.  280;  Harrison  v.  Middleton,  11  Gratt.  527;  Fusselman  v.  Worthington,  14 
111.  135.     See  ante,  p.  *36I. 

9  Sharpe  v.  Kelley,  5  Denio,  431 ;  Isaacs  i'.  Gearhart,  12  B.  Mon.  231.;  Ben- 
nock  V.  Whipple,  12  Me.  846. 


588  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

determine  the  tenancy  so  as  to  deny  his  lessor's  title  until  he 
shall  have  surrendered  possession  of  the  leased  premises  to  the 
lessor,  or  yielded  to  an  eviction  by  a  title  paramount.^  And 
the  lessor  may  sue  him  as  a  disseisor  without  an  entry  or  no- 
tice, and  may  maintain  an  action  for  a  tort  as  if  he  had  origi- 
nally entered  by  wrong.^  And  the  same  would  be  the  effect 
of  a  denial  on  the  part  of  a  tenant,  that  he  held  under  him 
to  whom  he  stands  in  the  relation  of  tenant  and  landlord.^ 

18.  Notwithstanding  the  estate  of  the  tenant  is  wholly  de- 
termined in  the  cases  above  stated,  and  he  has  no  longer  any 
right  to  possession  of  the  premises,  when  it  is  done  by  the 
lessor,  the  law  will  not  treat  the  lessee  as  a  trespasser  for 
entering  within  a  reasonable  time  and  removijig  his  effects, 
nor  for  removing  his  emblements  when  entitled  to  them.^ 

19.  But  he  would  not  be  allowed,  beyond  this,  a  reasonable 
time  to  find  a  new  place  suitable  for  his  business.^  And  what 
shall  be  a  reasonable  time,  in  any  case,  is  a  question  of  law  to 
be  determined  by  the  court.^ 

20.  From  the  peculiar  relation  of  landlord  and  tenant  to  the 
estate  in  case  of  a  tenancy  at  will,  the  question  has  been  dis- 
cussed, what  would  be  the  landlord's  remedy  for  an  injury 
done  by,  a  stranger  to  the  i^remises  while  in  the  occupancy  of 
his  tenant,  and  whether  he  could  maintain  trespass  quare 
elausuni  f regit.  It  has  been  held  that  if  the  injury  be  a  per- 
manent one  to  the  inheritance,  such  as  cutting  down  trees 

and  the  like,  such  action  may  be  sustained.'^ 
[*375]       *  21.  But  it  would  seem  that  the  doctrine  would  not 
apply  in  any  case  except  of  a  pure  tenancy  at  will, 

1  Towne  v.  Butterfield,  97  Mass.  105. 

2  Kussell  V.  Fabyan,  34  N.  H.  223. 

3  Sampson  v.  Schaeffer,  3  Cal.  196,  205;  Boston  v.  Binney,  11  Pick.  1,  8; 
Cliamberlin  i'.  Donahue,  45  Vt.  55. 

*  Doe  V.  M'Kaeg,  10  B.  &  C.  721 ;  2  Flint,  Real  Prop.  218  ;  Lit.  §  69;  Rising 
V.  Stannard,  17  Mass.  282;  Ellis  v.  Paige,  1  Pick.  43  ;  Turner  v.  Doe,  9  M.  &  W. 
647,  note  to  Am,  ed. 

5  Mann  v.  Hughes,  20  Law  Rep.  628. 

6  Co.  Lit.  56  b;  Ellis  v.  Paige,  1  Pick.  43. 

"<  Starry.  Jackson,  11  Mass.  519;  Hingham  v.  Sprague,  15  Pick.  102.  And 
this  idea  is  favored  by  Ripley  v.  Yale,  16  Vt.  257;  Davis  v.  Nash,  32  Me.  411; 
Gushing  v.  Kenfield,  5  Allen,  307,  where  defendant  broke  a  window,  and  held 
liable  to  the  landlord. 


CH.  XT.  §  1.]  ESTATES   AT   WILL,  589 

where  the  lessor  may  enter  at  any  moment ;  for  where  the 
premises  had  been  leased  for  a  j^ear,  the  lessor  could  not  have 
trespass.^  And  the  same  rule  was  applied  where  the  tenant 
was  entitled  to  three  months'  notice  before  he  was  compella- 
ble to  quit  the  premises.^  But  in  all  these  cases  an  action  on 
the  case  would  lie  in  favor  of  the  lessor.^ 

22.  The  necessity  of  giving  notice  in  order  to  determine  a 
tenancy  at  will  which  has  become  so  general  has  reduced  the 
class  of  estates  held  strictly  at  will  to  comparatively  few  in 
number.  They  still  exist  in  certain  cases,  and  form  a  second 
division  of  this  subject.  They  are  divided  into  two  classes, 
such  as  are  made  so  by  express  agreement  of  the  parties,  and 
such  as  are  created  by  implication  of  law. 

23.  If,  therefore,  a  tenancy  be  created  by  express  words, 
clearly  showing  the  intention  and  agreement  of  the  parties  that 
it  shall  be  only  so  long  as  both  parties  please,  it  will  constitute 
a  proper  estate  at  will,  although  rent  be  reserved,  payable  by 
the  year,  or  aliquot  parts  of  a  year.^  If  the  tenant  at  will  is 
to  pay  rent  at  certain  intervals,  and  the  lessor  determines  the 
tenancy  between  the  intervals  of  payment,  he  cannot  recover 
for  the  time  the  tenant  may  have  occupied  subsequent  to  the 
last  pay-day.^ 

24.  The  instances  of  tenancies  at  will  by  implication  of  law 
are  chiefly  those  where  the  tenant  enters  by  permission  of  the 
owner,  for  an  indefinite  period,  with  some  other  intention  than 

1  Lienow  v.  Ritchie,  8  Pick.  235.  2  French  v.  Fuller,  23  Pick.  104. 

3  Lienow  v.  Ritchie,  8  Pick.  285.  And  that  trespass  would  not  lie,  see  Camp- 
bell V.  Arnold,  1  Johns.  511 ;  Clark  v.  Smith,  25  Penn.  St.  137.  See  Starr  v. 
Jackson,  11  Mass.  519,  n.  In  Iowa  he  may  maintain  trespass  by  force  of  statute ; 
Brown  v.  Bridges,  31  Iowa,  145. 

*  2  Prest.  Abs.  25 ;  Richardson  v.  Landgridge,  4  Taunt.  128 ;  Smith,  Lead. 
Cas.  75 ;  Tud.  Cas.  15 ;  Smith,  Land.  &  Ten.  23,  n. ;  Doe  v.  Cox,  11  Q.  B.  122; 
2  Flint,  Real  Prop.  215;  Harrison  y.  Middleton,  11  Gratt.  527;  Humphries  v. 
Humpliries,  3  Ired.  362 ;  Doe  v.  Davies,  7  Exch.  89 ;  Sulhvan  v.  Enders,  3  Dana, 
1^6;  Elliott  V.  Stone,  1  Gray,  571.  In  both  Doe  v.  Cox  and  Doe  v.  Davies  there 
was  an  agreement  to  pay  rent  quarterly.  In  Cudlip  v.  Rundall,  4  Mod.  9,  the 
lessor  accepted  part  of  the  premises  described,  with  permission  to  the  lessee  to 
hold  tlie  excepted  part  when  the  lessor  did  not  want  the  same.  In  Harrison  v. 
Middleton,  1 1  Gratt.  527,  the  tenant  held  under  a  sealed  instrument,  which  con- 
tained an  agreement  to  surrender  to  the  lessor's  grantee  whenever  he  should  choose 
to  take  possession. 

5  Cameron  v.  Little,  62  Me.  550. 


690  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

to  create  the  relation  of  lessor  and  lessee.^  Thus 
[*376]  where  a  *  householder  j^ermitted  another  to  occupy 

rent  free,  the  tenant  was  one  at  will."^  So  where  the 
owners  of  a  dissenters'  chapel  and  dwelling-house  placed  a 
muiister  in  the  latter  as  a  minister  of  the  congregation.^  So 
where  the  widow  of  the  tenant,  from  year  to  year,  was  suffered 
to  occupy  the  premises,  she  paying  rent  to  the  lessor,  she  was 
held  to  be  strictly  tenant  at  will  of  the  administrator  of  the 
deceased  tenant.^ 

25.  Where  a  person  is  let  into  possession  under  a  contract 
to  purchase  lands,^  or  take  a  lease  of  the  same,^  and  it  makes 
no  difference  whether  with  or  without  an  agreement  to  pay 
interest  upon  the  contract  price,  his  possession  is  strictly  a 
tenancy  at  will.  But  where  the  owner  of  land  made  his  bond 
conditioned  to  convey  it  to  the  obligee  upon  his  paying  a 
certain  sum  on  demand,  and  interest  thereon  quarterly,  and 
by  the  terms  of  the  bond  the  obligee  was  in  the  mean  time  to 
retain  possession  of  the  premises,  it  was  held  to  be  a  demise 
and  not  a  tenancy  at  will.''  But  where  a  tenant  entered  under 
a  promise  of  a  written  lease  which  never  came,  and  occupied 
premises  for  which  he  was  by  the  original  agreement  to  pay 
a  certain  sum  as  rent,  he  was  held  to  be  a  tenant  from  ye^tr 
to  year,  and  entitled  to  a  notice  of  six  months  to  expire  at  the 
end  of  the  year.^  Entering,  however,  under  a  conditional 
promise  to  pay  rent,  does  not  create  a  tenancy  from  year  to 
year.     And  if  a  tenant  enters  under  a  promise  to  take  a  lease 

1  Jackson  v.  Bradt,  2  Caines,  169.  2  Rgx  i-.  Collett,  Russ.  &  Ry.  498. 

3  Doe  V.  M'Keag,  10  B.  &  C.  721.     See  also  Cheever  v.  Pearson,  16  Pick.  266. 

*  Doe  V.  Wood,  14  M.  &  W.  682. 

6  2  Flint,  Real  Prop.  216-220;  Gould  v.  Thompson,  4  Met.  224;  Doe  v.  Cham- 
berlaine,  5  M.  &  W.  14;  Proprietors  v.  McFarland,  12  Mass.  325;  Den  v.  Ed- 
inondston,  1  Ired.  152 ;  Watkins,  Conv.  20,  n. ;  Doe  v.  Miller,  5  Car.  &  P.  595  ; 
Doe  V.  Rock,  1  Car.  &  M.  459  ;  Jones  v.  Jones,  2  Rich.  (S.  C.)  542  ;  Glascock  v. 
,  Robards,  14  Mo.  350 ;  Carson  v.  Baker,  4  Dev.  220 ;  Howard  v.  Shaw,  8  M.  & 
W.  118;  Jackson  v.  Miller,  7  Cow.  747  ;  Manchester  v.  Doddridge,  3  Ind.  860  ; 
Dean  v.  Comstock,  32  111.  180  ;  Prentice  v.  Wilson,  14  111.  93  ;  Freeman  v.  Head- 
ley,  4  Vroom,  523  ;  Harris  v.  Frink,  49  N.  Y.  32 ;  Dunne  v.  Trustees,  39  lU.  583. 

«  Smith,  Land.  &  Ten.  18 ;  tud.  Cas.  10 ;  Hammerton  v.  Stead,  3  B.  &  C. 
478;  Riseley  v.  Ryle,  11  M.  &  W.  16;  Howard  v.  Shaw,  8  M.  &  W.  118 ;  Hegan 
V.  Johnson,  2  Taunt.  148 ;  Dunne  v.  Trustees,  39  111.  583. 

■?  White  V.  Livingston,  10  Cush.  259;  Cole  v.  Gill,  14  Iowa,  529. 

8  Silsby  V.  Allen,  43  Vt.  177. 


Ca.  XI.  §  1.]  ESTATES   AT   WILL.  591 

of  the  premises,  and  he  neglects  or  refuses  to  take  one,  he 
becomes  a  tenant  at  will  and  not  from  year  to  year,  and  a 
mere  demand  for  possession  terminates  the  tenancy  without 
any  other  notice.* 

26.  And  it  may  be  laid  down,  generally,  that  if  a  person  by 
consent  of  the  owner  of  land  is  let  into  possession  without 
having  a  freehold  interest  or  any  certain  term,  and  without 
circumstances  which  would  show  an  intention  to  create  an 
estate  from  year  to  year,  he  is  a  tenant  at  will.^  Nor  would  it 
make  any  difference  that  the  premises  are  under  a  prior  lease, 
provided  the  first  lessee  does  not  interfere  with  the  enjoyment 
by  the  second.  And  the  lessor  may  recover  for  use  and  occu- 
pation of  the  premises  of  such  second  lessee.^ 

27.  Such  will  be  the  case  if  the  grantor  continue  in  posses- 
sion after  delivery  of  his  deed  to  the  purchaser  ;  ^  or  a  judg- 
ment debtor  continue,  after  a  sale  on  fi.  fa.^  to  hold  by  consent 
of  the  purchaser.^  But  an  action  for  use  and  occupation  will 
not  lie  where  the  tenant  holds  adversely  to  the  claimant.  The 
title  to  the  premises  cannot  be  tried  in  this  form  of  action.*^ 

28.  So  where  the  trustee  who  has  the  legal  estate 
suffers  the  ^cestui  que   trust  to  occupy  the  premises,   [*377] 
the  latter  is  considered  a  tenant  at  will  of  the  former." 
And  the  trustee  may  have  ejectment  against  his  cestui  que  trust 
to  recover  possession  of  the  trust  property.^ 

29.  But  it  should  not  be  inferred  from  the  use  of  the  terms 
landlord  and  tenant,  that  a  rent  is  always  incident  to  a  tenancy 
at  will.  It  often  depends  upon  circumstances,  whether  and 
in  what  form  such  a  tenant  will  be  chargeable  for  the  use  and 

1  Dunne  v.  Trustees,  &c.,  39  III.  578. 

2  Smitli,  Land.  &  Ten.  18  ;  Richardson  v.  Landgridge,  4  Taunt.  128 ;  Gould  v. 
Thompson,  4  Met.  224  ;  Doe  v.  Wood.  14  M.  &  W.  682 ;  2  Smith,  Lead.  Cas.  76  j 
Tud.  Cas.  10. 

»  Bedford  v.  Terhune,  30  N.  Y.  465,  467  ;  Phipps  v.  Sculthorpe,  1  B.  &  Aid. 
50. 

•»  Currier  v.  Earl,  13  Me.  216 ;  Smith,  Land.  &  Ten.  19,  n. 

5  Nichols  V.  Williams,  8  Cow.  13. 

6  luttredge  v.  Peaslee,  3  Allen,  237;  Keyes  v.  Hill,  30  Vt.  765;  Hogsett  v. 
Ellis,  17  Mich.  367. 

'  Tud.  Cas.  11 ;  Wms.  Real  Prop.  325  ;  Pomfret  v.  Windsor,  2  Ves.  Sen.  472 ; 
Garrard  v.  Tuck,  8  C.  B.  231 ;  Melling  v.  Leak,  16  C.  B.  652  ;  2  Prest.  Abs.  25. 

8  Matthews  v.  Ward,  10  G.  &  Johns.  456 ;  Jackson  v.  Pierce,  2  Johns.  226 ; 
post,  vol.  2,  p.  *206. 


592  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

occupation  of  premises  in  his  possession.  If,  for  instance,  a 
purchaser  enters  under  a  parol  contract  of  purchase  and  sale, 
and  the  contract  fails  by  the  fault  of  the  vendor,  he  would 
not  be  liable  to  pay  for  the  use  and  occupation  of  the  premises 
in  the  absence  of  an  express  agreement  to  that  effect.^  But 
it  is  not  necessary  that  there  sliould  be  an  expi-ess  contract  to 
pay  and  receive  rent,  in  order  to  create  the  relation  of  land- 
lord and  tenant.^ 

30.  But  if,  after  the  contract  for  purchase  is  entirely  at  an 
end,  the  tenant,  the  purchaser,  continues  to  hold  possession, 
he  will  be  liable  as  tenant  for  use  and  occupation.^  In  order 
to  recover  for  use  and  occupation,  the  tenant  must  have  en- 
tered under  a  contract.  To  hold  one  who  has  been  in  posses- 
sion of  land  in  an  action  for  use  and  occupation,  there  must  be 
a  contract  express  or  implied  on  his  part  to  pay  for  such  use, 
and  during  the  time  of  such  enjoyment  the  relation  of  land- 
lord and  tenant  must  have  subsisted  between  them.  At 
common  law,  such  action  would  not  lie  against  a  tenant  at 
sufferance.^  Where,  therefore,  one,  under  a  contract  to  pur- 
chase land,  entered  and  occupied  it,  and  the  contract  was 
ultimately  performed,  it  was  held  that  he  did  not  thereby 
become  liable  to  pay  rent  for  use  and  occupation  during  the 
time  of  his  occupancy,  although  it  was  for  more  than  a  year, 
and  the  value  of  the  rent  would  have  been  $500.    His  tenancy 

1  "Winterbottom  v.  Ingham,  7  Q.  B.  611 ;  Smith,  Land  &  Ten.  18  ;  Bell  v.  Ellis, 
1  Stew.  &  Port.  (Ala.)  294;  Little  v.  Pearson,  7  Pick.  301 ;  Tew  v.  Jones,  13  M. 
&  W.  Am.  ed.  14.  n. ;  Howard  v.  Shaw,  8  M.  &  W.  118;  Hough  v.  Birge,  11  Vt. 
190;  Coffnian  v.  Huck,  24  Mo.  496;  Hasle  v.  McCoy,  7  J.J.  Marsh.  819;  Syl- 
vester V.  Ralston,  .31  Barb.  286.  The  court  in  New  York  held  that  a  purchaser 
under  the  above  circumstances  had  a  mere  license,  without  the  relation  of  land- 
lord and  tenant.  Doolittle  v.  Elddy,  7  Barb.  74  ;  Stone  v.  Sprague,  20  Barb.  509. 
In  a  case  in  Connecticut,  where  the  purchaser  entered  and  occupied  the  premises 
for  some  years  under  a  written  contract  to  purchase,  paying  a  part  of  the  pur- 
chase-money, and  then  left  the  premises,  and  the  owner  entered  upon  them,  the 
court  held  that  the  plaintiff  could  not  recover  for  use  and  occupation,  though 
the  defendant  alone  was  in  fault  for  leaving  and  failing  to  perform  tlie  contract, 
—  on  the  ground,  among  other  things,  that  the  original  contract  was  still  open. 
Vandenheuvel  v.  Storrs,  3  Conn.  203. 

2  McKillsack  v.  BuUington,  37  Miss.  535. 

3  Howard  v.  Shaw,  8  M.  &  W.  118;  Dwight  v.  Cutler,  3  Mich.  (Gibbs)  506; 
Hogsett  V.  Ellis,  17  Mich.  367. 

*  Cunningham  v.  Holton,  55  Me.  33,  38 ;  Same  v.  Horton,  57  Me.  422. 


CH.  XI.  §  1.]  ESTATES    AT   WILL.  593 

was,  during  that  time,  of  the  nature  of  a  tenancy  at  will.^ 
But  where,  in  the  contract  for  sale,  there  is  an  agreement  that 
the  vendee  may  occupy  the  premises,  while  the  court  of  Wis- 
consin hold  it  doubtful  whether  he  would  be  liable  for  use 
and  occupation  if  he  afterwards  refuse  to  complete  the  pur- 
chase, they  hold  that  if  by  his  agreement  he  was  to  hold  "  as 
tenant  at  sujfferance  of  the  vendor,"  it  so  far  recognized  the 
relation  of  landlord  and  tenant  between  them  that  upon 
failure  to  perform  he  was  liable  for  use  and  occupation.^  But 
if  once  in,  he  will  continue  to  be  liable  until  the  contract  is 
rescinded  and  the  possession  surrendered,  whether  he  actually 
uses  the  premises  or  not.  As  where  A  hired  of  B  a  barn,  and 
locked  it  up  and  never  occupied  it,  nor  surrendered  possession 
of  it  to  the  owner,  he  was  held  liable  in  an  action  for  use  and 
occupation.^  So  if  he  continues  to  occupy  he  will  be  liable, 
although  partially  interrupted  in  his  enjoyment  of  the  prem- 
ises by  act  of  the  lessor.'* 

31.  If  the  vendee  enter  and  occupy  under  an  agreement  to 
purchase,  and  afterwards  refuses  to  carry  out  the  contract,  or 
accept  a  conveyance,  he  will  be  liable  to  respond  in  damages, 
in  some  form,  for  such  use  and  occujjation  of  the  premises. 
By  some  courts  he  has  been  held  liable  in  an  action  of  assump- 
sit, on  the  ground  that  he  held  the  premises,  beneficially,  by 
permission  of  the  owner,  thereby  raising  an  equitable  claim 
for  compensation.^ 

31  a.  Though  the  doctrine  above  stated  is  fully  sustained 
in  the  case  cited  below,*^  it  is  contested  b}^  Mansfield,  J.,  who 
denies  that  a  contract  can  arise  by  implication  of  law,  under 
circumstances  the  occurrence  of  which  neither  of  the  parties 

1  Dennett  v.  Penobscot  Co.,  57  Me.  425,  427 ;  Dakin  v.  Allen,  8  Cush.  33  ; 
"Woodbury  v.  Woodbury,  47  N.  H.  11. 

2  Wright  V.  Roberts,  22  Wis.  161. 

3  Hall  V.  West,  Transp.  Co.,  34  N.  Y.  291 ;  Waring  v.  King,  8  M.  &  W.  571 ; 
Pinero  v.  Jiulson,  6  Bing.  206. 

*  Boston,  &c.  Railroad  v.  Ripley,  13  Allen,  421. 

5  Hull  V.  Vauglian,  6  Price,  157  ;  Gould  v.  Thompson,  4  Met.  228 ;  HoAvard  v. 
Shaw,  8  M.  &  W.  118,  Am.  ed.  n. ;  Tancred  v.  Christy,  12  M.  &  W.  324,  n. 
And  the  same  is  assumed  to  be  law,  although  not  the  point  under  consideration, 
in  Clough  V.  Hosford,  6  N.  H.  231.  See  also  Alton  v.  Pickering,  9  N.  H.  494- 
498. 

8  Ilearn  v.  Tomlin,  Peake's  cases,  192. 
VOL.  I.  38 


594  LAW    OF   REAL    PROPERTY.  [liOOK    L 

ever  h<ad  in  their  contemplation.^  The  doctrine  upon  the 
subject  as  held  by  the  United  States  Court  is  thus  stated: 
If,  under  a  contract  to  sell,  a  vendor  puts  the  vendee  into  pos- 
session, he  holds  as  licensee,  he  is  not  tenant  of  a  landlord, 
and  he  pays  nothing  for  the  enjoyment  of  the  estate.  But  he 
can  no  more  deny  his  vendor's  title  than  if  he  were  lessee. 
And  his  assignee  is  bound  by  the  same  estoppel  as  himself. 
If  the  vendee  fails  to  pay  the  purchase-money  according  to 
agreement,  his  possession  becomes  tortious,  and  the  vendor 
may  have  ejectment,  without  any  previous  demand  or  notice.^ 
There  has  been  a  seemingly  great  diversity  of  opinion  in  the 
courts  in  applying  the  law  upon  this  subject.  The  action  being 
one  of  assumpsit,  it  is  based  upon  the  idea  of  a  contract  between 
the  parties.  But  this  contract  may  be  express  or  implied,  pro- 
vided it  be  one  which  creates  or  recognizes  the  relation  of 
landlord  and  tenant,  by  which  the  defendant  holds  possession 
of  the  premises  under  the  plaintiff,  by  an  agreement  to  pay 
for  the  use  of  the  same.  The  questions  of  difficulty  have  been 
where,  though  the  holding  may  not  have  been  adverse,  it  had 
its  inception  in  some  other  contract  than  that  of  hiring,  but 
its  character  has  changed  by  a  change  in  the  relation  of  the 
parties  to  the  estate  in  question.  If  the  defendant  is  in  under 
a  claim  of  right,  and  denying  the  plaintiff's  ownership,  this  form 
of  action  will  not  lie.^  But  the  case  last  cited  implies  that 
assumpsit  would  lie  for  use  and  occupation,  where  one  holds 
lands  beneficially,  by  permission  of  the  owner.  And  the  same 
court,  in  a  subsequent  case,  adopted  this  idea,  and  applied  it 
to  a  purchaser  who  entered  under  an  agreement  to  purchase, 
and  occupied  the  premises,  but  the  same  were  burned  before 
the  deed  was  delivered,  and  he  then  declined  accepting  the 
deed.  The  vendor  recovered  for  this  occupancy  of  the  pur- 
chaser, in  an  action  for  use  and  occupation.^  And  a  like  doc- 
trine was  held  in  a  case  where  the  occupant  gained  possession 
by  wrong,  though  not  by  foroe,  from  one  who  yielded  it 
under  a  misapprehension  of  facts.^    But  there  is  a  pretty  large 

1  Kirtland  v.  Pounsett,  2  Taunt.  145. 

2  Burnett  v.  Coldvvell,  9  Wall.  293  ;  Chamberlin  v.  Donahue,  44  Vt.  59. 

s  Boston  V.  Binney,  11  Pick.  9.  *  Gould  v.  Thompson,  4  Met.  228. 

5  Hull  ('.  Vaughan,  6  Price,  157. 


CH.  XI.  §  1.]  ESTATES    AT    WILL.  595 

class  of  cases  where  it  has  been  held  that  an  action  will  not 
lie  for  use  and  occupation,  where  the  defendant  has  occupied 
under  an  express  agreement  as  to  the  terms,  although  such 
agreement  may  not  be  carried  out  according  to  its  terms, 
and  the  occupancy  may  not  conform  to  it.  Thus  where  A 
demised  premises  to  B  at  a  rent  payable  quarterly,  and 
the  tenant,  by  permission  of  the  lessor,  quitted  possession 
before  the  close  of  a  quarter,  or  the  lessor  determined  the 
tenancy  between  rent  days,  it  was  held  that  the  lessor  could 
maintain  no  action  for  the  use  of  the  premises  since  the  last 
rent  day,  till  the  lessee  surrendered  possession. ^  So  where  the 
tenant  held  under  a  contract  of  purchase  as  vendee,  it  was 
held  that  the  law  raised  no  implied  promise  to  pay  for  the  use 
of  the  premises.^  In  case  of  refusal  of  the  occupant  in  such 
case  to  complete  the  purchase,  he  may  thereafter  become 
liable  as  a  tenant  at  will.  But  if  the  owner  refuse,  on  his 
part,  to  execute  a  deed,  he  cannot  turn  the  occupancy  of  the 
tenant  into  a  lease  carrying  rent,  nor  recover  possession  of  the 
premises  in  a  process  against  the  tenant  as  a  wrongful  holder 
of  the  same.^  Nor  can  the  owner  of  land  hold  a  tenant  re- 
sponsible in  this  form  of  action,  from  the  mere  fact  of  his 
having  enjoyed  possession  of  the  estate,  if  the  tenant  refused 
to  hold  the  relation  to  such  owner  of  tenant,  as  where  two 
persons  claimed  the  estate  and  the  tenant  held  under  one  of 
these,  though  in  fact  it  belonged  to  the  other.^ 

*32.  But  the  ordinary  rule  of  law  in  such  cases  [*378] 
is,  that  when  a  purchaser,  who  has  been  in  possession 
under  a  contract  to  purchase,  refuses  to  perform  on  his  part, 
the  owner's  remedy  is  not  in  assumpsit,  but  trespass.  By 
such  refusal  he  is  considered  as  annulling  the  conditional 
license  under  which  he  entered,  and  as  having  entered  without 
license.^ 

1  Grimman  v.  Legge,  8  B.  &  C.  324 ;  Nicholson  v.  Munigle,  6  Allen,  215;  Ful- 
ler V.  Swett,  6  Allen,  219,  n. 

2  Jones  V.  Tipton,  2  Dana,  295 ;  Smith  v.  Stewart,  G  Jolins.  46  ;  Bancroft  v. 
Wardvvell,  13  Johns.  489. 

3  Dunham  v.  Townshend,  110  Mass.  441. 

*  Keyes  v.  Hill,  30  Vt.  7C.r, ;   llogsett  v  Ellis,  17  Mich.  367. 

5  Smith  V.  Stewart,  6  Johns.  46;  Bancroft  v.  Wardwell,  13  Johns.  489; 
Brewer  v.  Conover,  3  Harris.  215;  Howard  v.  Shaw,  8  M.  &  W.  Am.  ed.  123,  n. 
and  12  Id.  324,  n. ;  Clough  v.  Hosford,  6  N.  H.  231 ;  Bell  v.  Ellis.  1  Stew.  &  Port 
(Ala.)  294. 


596  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

83.  And  assumpsit  for  rent  clearly  would  not  lie  while 
the  contract  of  sale  continued  open  and  undetermined.^  But 
where  a  tenant  at  will  entered  under  an  agreement  to  pay  a 
certain  rent  by  the  year,  and  the  parties  afterwards  waived 
that  agreement,  and  then  tried  to  agree  upon  new  terms,  but 
failed,  the  tenant  continuing  to  occupy  the  premises,  was  held 
liable  in  a  quantum  meruit  for  the  use  of  the  same.^ 

34.  If  the  vendor  continues  to  hold  possession  after  a  sale 
of  land ;  in  order  to  make  him  liable  in  assumpsit  for  use  and 
occupation,  it  must  be  shown  that  his  occupation  was  by  per- 
mission of  the  purchaser.  If  he  holds  without  such  permis- 
sion, he  is  liable  only  in  trespass  for  mesne  profits.^  Nor 
would  assumpsit  for  use  and  occupation  lie  where  the  tenant 
holds  under  an  indenture  of  lease,  even  though  the  lessor,  by 
his  own  act,  has  barred  himself  from  recovering  rent  under 
such  indenture.*  But  where  one  entered  under  a  lease  which 
was  only  executed  by  the  lessor,  and  occupied  the  premises, 
he  was  held  liable  in  assumpsit  for  the  rent  reserved  in  the 
lease. ^ 

35.  In  respect  to  the  third  subject  of  inquiry,  as  above  pro- 
posed, in  what  cases  a  notice  to  quit  is  necessary  in  order  to 

determine  an  estate  at  will,  it  would  be  found  that 
[*379]  from  an  *  early  period  the  courts  were  inclined  to  pro- 
tect the  interest  of  the  parties  against  a  sudden  deter- 
mination of  such  tenancies.  The  tenant  who  had  planted 
crops  was  held  entitled  to  them  if  expelled  by  his  landlord,  and 
liad  a  right  to  enter,  cultivate,  and  gather  them  without  being 
subjected  to  an  action  of  trespass.  So  he  was  authorized  to 
enter  and  remove  his  effects,  within  a  reasonable  time,  after  the 
determination  of  his  tenancy.^  From  this  the  advance  was 
easy  to  requiring  a  notice  to  quit,  in  all  such  cases,  from  the 

1  Wigoin  V.  Wiggin,  6  N.  H.  208;  Johnson  v.  Beauchamp,  9  Dana,  124  ;  Van- 
denheuvel  w   Storrs,  3  Conn.  203. 

2  Forbes  v.  Smiley,  56  Me.  174. 

3  Tew  1-.  Jones,  13  M.  &  W.  14,  and  note  to  Am.  ed. ;  Tud.  Cas.  10. 

4  Leishman  i\  White,  1  Allen,  489  ;  North  v.  Nicliols,  37  Conn.  375.  By  Mass. 
Gen.  Stat.,  c.  90,  §  26,  rent  may  be  recovered  in  an  action  of  contract,  and  plain- 
tiflf  may  use  the  deed  of  demise  in  evidence  to  prove  the  amount  due. 

5  Fitton  v.  Hamilton  City,  6  Nevada,  196. 

6  Smith,  Land.  &  Ten.  20,  21 ;  2  Flint,  Real  Prop.  218. 


CH.  XI.  §  1.]  ESTATES   AT   WILL.  597 

landlord  to  his  teiicant,  before  the  right  arose  actually  to  expel 
him.  And  this  principle  was  adopted  as  early  as  the  time  of 
Henry  VIII. ^  It  was  obviously  an  act  of  justice,  also,  that 
the  tenant  should  give  notice  to  the  landlord  of  liis  intention 
to  quit,  that  he  might  have  an  opportunity  to  procure  a  new 
tenant.2  In  respect  to  notice,  where  the  lessors  are  tenants 
in  common,  each  must  notify  for  himself,  nor  can  one  avail 
himself  of  a  notice  by  the  other.^  So  if  several  tenants  in  com- 
mon make  a  parol  letting,  and  by  the  terms  in  respect  to  such 
lessors  the  letting  of  one  was  by  way  of  conditional  limitation, 
although  the  tenancy  as  to  this  one  might  thereby  be  deter- 
mined, as  to  all  the  rest,  notice  would  be  requisite  for  that 
jurpose.^  It  is  doubtful  if  one  of  several  lessors  can  maintain 
a  process  against  a  tenant  who  holds  under  him  and  other 
lessors  Mdio  are  owners  in  common,  to  recover  under  the  statute 
a  portion  of  the  demised  premises.^  Although  one  tenant  in 
common  may  have  a  process  of  forcible  entry  and  detainer 
against  his  co-tenant.^ 

36.  At  first,  the  courts  had  no  other  rule  as  to  notice  than 
that  it  should  be  a  reasonable  one,  and  the  effect  was,  that,  in 
ordinary  cases,  estates  at  will,  instead  of  being  a  tenancy, 
jDurely  at  Avill,  continued  till  a  reasonable  notice  from  one  of 
the  parties  to  the  other  of  his  election  to  determine  it.^ 

37.  As  will  be  shown  hereafter,  this  uncertain  jieriod  was  at 
length  converted  into  a  practical  tenancy  for  a  certain  term, 
generally  from  year  to  year  by  the  length  of  time  required  in 
order  to  give  the  requisite  notice  to  quit,  and  the  time  at 
which  such  notice  must  expire.^  But  the  principle  of  re- 
quiring notice  does  not  apply  to  such  cases  as  have  been 
enumerated  under  the  previous  head. 

1  Year-Book,  13  Hen.  VIII.  15  b;  Doe  v.  Watts,  7  T.  R.  83;  2  Smith,  Lead. 
Cas.  76;  Doe  v.  Porter,  3.T.  R.  13. 
■i  Kiglily  V.  Bulkly,  Sid.  338. 
8  Dillon  V.  Brown,  11  Gray,  180 ;  Pickard  v.  Perley,  45  N.  H.  195;  post,  *386, 


*  Ashley  v.  Warner,  11  Gray,  43.  5  King  v.  Dickerman,  11  Gray,  481. 

6  Presbrey  v.  Presbrey,  13  Allen,  284. 

■^  Smith,  Lead.  Cas.  76,  and  note  to  Am.  ed. ;  Ellis  v.  Paige,  1  Pick.  43 ;  Davis 
V.  Thompson,  13  Me.  209.  And  such  seems  to  be  the  rule  in  Vermont.  Rich  v. 
Bolton,  46  Vt.  87. 

8  Smith,  Land.  &  Ten.  234. 


598  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

38.  In  cases  where  notice  is  required,  it  has  been  stated  that, 
originally,  the  length  of  such  notice  must  have  been  a  reason- 
able time,  and  ^Massachusetts  and  Maine  never  having  adopted 
the  principle  of  construing  a  tenancy  for  an  indefinite  period, 

a  holding  from  year  to  year,  retained  this  notion  of  a 
[*380]  reasonal)Ie  *  notice,  until  provision  as  to  what   that 
should  be,  and  how  given,  was  made  by  statute.^ 

39.  The  length  of  the  notice  required  to  determine  a  ten- 
ancy at  will  may  be  fixed  by  agreement  of  the  parties,^  or  it 
may  be  prescribed  by  statute,  as  is  done  in  many  of  the  States. 
It  is  competent  for  the  parties  to  a  tenancy  at  will  to  determine 
the  same  by  agreement  in  any  way  other  than  by  statute 
notice.  Thus  it  may  be  by  giving  a  month's  notice  in  writingij 
if  such  is  the  agreement,  and  in  such  case  the  notice  need  not 
have  reference  to  the  end  of  a  quarter  or  calendar  month.^ 
So  by  the  agreement  of  the  parties,  the  tenancy  may  be  deter- 
mined upon  the  happening  of  some  prescribed  contingent 
event,  without  notice.'*  But  in  New  Hampshire  a  notice  by 
two  of  three  lessors  will  not  lay  the  foundation  for  summary 
proceedings  for  removal  of  a  tenant  at  will.^  And  if  the  land- 
lord agree  with  the  tenant  that  he  may  quit,  though  it  be  by 
parol,  and  the  tenant  accordingly  do  so  without  any  further 
notice,  his  liability  to  pay  rent  ceases.^ 

40.  But  where  there  is  no  agreement  nor  time  fixed  by 
statute  as  to  the  length  of  notice  requisite  to  determine  a  ten- 
ancy at  will,  and  the  case  does  not  come  within  the  class  of 
tenancies  from  year  to  year,  it  is  generall}'  true  that  it  will 
be  sufficient  if  it  be  equal  to  the  interval  betv/een  the  times  of 


1  Rising  V.  Stannard,  17  Mass.  282;  Hollis  v.  Pool,  3  Met.  350;  Moore  v. 
Boyd,  24  Me.  242;  Furlong  v.  Leary,  8  Cash.  409.  In  the  statute  of  frauds  in 
Massachusetts,  of  1692,  an  exception  was  made  of  leases  for  terms  not  exceed- 
ing three  years.  But  this  was  omitted  in  the  revision  of  the  statute  in  1784.  4 
Dane,  Abr.  62.     Provinc.  Laws,  1692-8,  c.  15,  §  1. 

2  2  Crabb,  Eeal  Prop.  425 ;  Doe  v.  Donovan,  1  Taunt.  555 ;  Kemp  v.  Derrett, 
3  Camp.  510. 

3  May  V.  Rice,  108  Mass.  150. 

*  Creech  v.  Crockett,  5  Cush.  133  ;  Hollis  v.  Pool,  3  Met.  350 ;  Elliott  v.  Stone, 
1  Gray,  571. 

5  Pickard  v.  Perley,  45  N.  H.  195. 
<>  Pearson  v.  Goodale,  8  Allen,  202. 


CH.  XI.  §  1.]  ESTATES    AT   WILL.  599 

pajment  of  rent,  or  the  length  of  the  time  by  which  the  letting 
was  at  first  measured,  as  by  the  quarter,  month,  or  week.^ 

41.  If  a  party  enter  under  a  parol  lease  for  a  term  certain, 
or  for  a  time  limited  by  agreement,  as  to  its  duration,  by  the 
happening  of  some  event,  where,  by  statute,  all  parol  leases 
are  declared  to  be  estates  at  will,  as  is  the  case  in  Massachu- 
setts and  Maine,  or  where  by  the  lease  itself  the  estate  is  an 
estate  at  will,  such  tenancy  may  still  be  determined  by  notice 
like  any  estate  at  will.  Yet,  if  not  so  determined,  it  will  come 
to  an  end  without  notice  tit  the  expiration  of  the  time  or  the 
happening  of  the  event.^  And  where,  as  in  the  case  in  the 
English  statutes  and  those  of  many  of  the  States,  leases 

/or  a  certain  *  period  are  excepted  from  the  clause  [*381] 
which  declares  parol  leases  to  be  estates  at  will,  and 
such  a  lease  is  made  for  a  definite  period  within  that  excep- 
tion, no  notice  would  be  requisite  to  determine  such  lease,  or 
would  have  any  effect  to  determine  it  if  given  before  the 
natural  expiration.^  And  even  if  the  parol  letting  be  made 
for  such  a  period  of  time,  as  is  declared  by  statute  to  be  void 
or  to  constitute  a  mere  tenancy  at  will,  though  a  notice  in 
such  case  would  determine  the  tenancy  before  the  time  fixed 
by  the  agreement,  it  would  expire  without  notice  at  the  end 
of  the  time  for  which  the  parol  lease  was  to  run.* 

42.  If  by  agreement  or  by  construction  of  the  law  upon  the 
act  of  the  parties,  a  tenancy  becomes  one  strictly  at  will, 

1  2  Crabb,  Real  Prop.  426 ;  Coffin  v.  Lunt,  2  Pick.  70 ;  Riglit  v.  Darby,  1  T. 
R.  162  ;  Doe  v.  Raffan,  6  Esp.  4 ;  Prindle  v.  Anderson,  19  Wend.  391,  s.  c.  23 
Id.  616 ;  Prickett  v.  Ritter,  16  111.  96 ;  Huyser  v.  Chase,  13  Mich.  102 ;  Wood- 
row  V.  Michael,  13  Mich.  190.  In  such  cases  in  Maine,  tenancy  may  be  deter- 
mined by  30  days'  notice  in  writing.     Esty  ;;.  Baker,  50  Me.  333. 

2  Creech  v.  Crockett,  5  Cush.  135;  Howard  v.  Merriam,  5  Cush.  563;  Sted- 
man  r.  Mcintosh,  4  Ired.  291 ;  2  Flint,  Real  Prop.  220;  Danforth  v.  Sargeant, 
14  Mass.  491;  2  Crabb,  Real  Prop.  421;  McGee  v.  Gibson,  1  B.  Mon.  105; 
Allen  V.  Jaquish,  1  Wend.  628 ;  Overdeer  v.  Lewis,  1  Watts  &  S.  90 ;  2  Smith, 
Lead.  Cas.  5th  Am.  ed.  180;  Mollis  v.  Pool,  3  Met.  350;  Fifty  Associates  v. 
Rowland,  11  Met.  99;  ElUott  v.  Stone,  12  Cush.  174;  Secor  v.  Pestana,  37  111. 
527,  528. 

3  Smith,  Land.  &  Ten.  64 ;  Id.  65  ;  Wms.  Real  Prop.  326 ;  Edge  v.  Strafford, 
1  Tyrw.  293;  Brown  v.  Keller,  32  111.  152. 

*  2  Flint,  Real  Prop.  220;  People  v.  Rickert,  8  Cow.  226;  Larkin  v.  Avery, 
23  Conn.  304 ;  Doe  v.  Bell,  5  T.  R.  471 ;  Schuyler  v.  Leggett,  2  Cow.  660;  Prin- 
die  V.  Anderson,  19  Wend.  391 ;  Tress  v.  Savage,  4  Ellis  &  B.  38. 


600  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

though  it  ma}^  have  been  otherwise  originally,  no  notice  to 
quit  is  necessary  in  order  to  determine  it.^  So  if  the  relation 
of  landlord  and  tenant  once  subsisting  is  destroyed,  no  notice 
is  requisite  in  order  that  either  party  should  avail  himself  of 
his  legal  remedies.^  Nor  is  notice  to  quit  ever  necessary  un- 
less the  relation  of  landlord  and  tenant  subsists.^  Thus,  if 
one  in  possession  repudiates  the  relation  of  tenant  to  his  land- 
lord, or  of  vendee  to  his  vendor,  if  he  enters  under  a  contract 
of  purchase  and  sets  up  a  hostile  claim  to  title,  no  demand 
of  possession  or  notice  to  quit  is  necessary.^  So  where  the 
tenancy  at  w'ill  is  a  conditional  limitation,  and  the  event  hap- 
pens which  determines  the  tenancy,  no  notice  is  requisite.  As 
where  the  premises  were  let  so  long  as  the  tenant  kept  a 
good  school,  and  he  failed  to  keep  one.^ 

1  Elliott  V.  Stone,  1  Gray,  571,  where  the  tenant  agreed  to  pay  rent  in  ad- 
vance, and  failed  to  do  so.  Jackson  v.  Miller,  7  Cow.  747,  where  the  defendant 
entered  under  contract  to  purchase,  and  failed  to  perform  on  his  part.  Chilton 
V.  Niblett,  3  Humph.  404 ;  Stone  v.  Sprague,  20  Barb.  509  ;  Doolittle  v.  Eddy,  7 
Barb    74. 

2  Hall  V.  Burgess,  5  B.  &  C.  .332,  where  the  tenant  quit  at  the  end  of  the  year, 
and  the  landlord  before  six  months  let  the  premises.  In  Thomas  v.  Cook,  2  B. 
&  Aid.  119,  where  the  tenant  underlet,  the  landlord,  by  distraining  on  the  under- 
tenant, was  held  to  liave  lost  his  claim  on  the  tenant,  though  lie  had  given  no 
notice.     Clemens  v.  Bromfield,  19  Mo.  118. 

3  Jackson  v.  Deyo,  3  Johns.  422;  Williams  v.  Hensley,  1  A.  K.  Marsh.  181, 
where  the  tenant  disclaimed  and  denied  the  landlord's  title.  Tuttle  v.  Reynolds, 
1  Vt.  80 ;  Ross  v.  Garrison,  1  Dana,  85 ;  Larned  v.  Clarke,  8  Cush.  29. 

*  Ingraham  v.  Baldwin,  5  Seld.  46 ;  Brown  v.  Keller,  32  111.  152. 
5  Ashley  v.  Warner,  11  Gray,  45;  Bolton  v.  Landers,  27  Cai.  105;   Smith  v. 
Shaw,  16  Cal.  88 ;  Elliott  v.  Stofie,  1  Gray,  575. 


CH.  XI.  §  2.]  ESTATES   AT   WILL.  601 

*  SECTION  II.  [*382] 

ESTATES  FROM  YEAR   TO  YEAR. 

1,  2.  Estates  from  year  to  year,  —  how  created. 

3.  Agreement  to  pay  rent  essential  to  them. 

4,  5.  How  they  are  estabUshed  and  how  determined. 

6.  No  notice  necessary  where  tenancy  is  for  definite  time. 

7.  Landlord  cannot  have  trespass  against  tenant  till  entry  made. 
8,  9.  Incidents  to  estates  from  year  to  year. 

10.  Lessor  and  lessee  equally  bound  to  give  notice. 

11, 12.  Of  waiving  notice  to  quit. 

13.  How  long  tenant  liable  for  rent. 

14.  Tenant  may  forfeit  estate  by  waste. 

15-22.  Of  notices,  —  their  form,  time,  and  manner  of  service,  &c. 

23-26.  Different  rules  as  to  length  of  notice. 

26  a.  Of  reviving  tenancy  by  accepting  rent. 

27-30.  Determination  of  tenancy  by  surrender,  alienation,  &c. 

31-35.  Effect  of  statute  of  frauds  9n  parol  leases. 

1.  Because  of  the  uncertainty  of  the  rule  requiring  reason- 
able notice  in  order  to  determine  a  parol  lease,  and  from  the 
circumstance  that  rent  was  generally  measured  by  the  year, 
courts  early  adopted  a  rule  which  has  been  extensively  fol- 
lowed in  this  country,  that  a  general  tenancy  by  a  parol  lease 
where  rent  is  to  be  paid  shall  be  considered  as  a  lease  for  a 
year,  which  can  only  be  determined  by  a  notice  for  the  time 
of  at  least  six  months,  terminating  at  the  expiration  of  the 
year.  And  if  the  tenant  is  allowed  to  hold  without  such 
notice  into  a  second  year,  it  will  be  considered  as  a  holding 
for  such  second  year,  and  so  on.  So  that  the  common  mode 
of  designating  such  estates  by  parol  is  as  estates  from  year  to 
year,  to  continue  till  either  party  gives  the  other  the  requisite 
notice  to  determine  it.^  Where  the  tenancy  is  from  year  to 
year,  or  for  an  uncertain  time,  in  Illinois  sixty  days'  notice  is 
sufficient  to  determine  it.  But  if  it  be  for  less  than  a  month, 
thirty  days  is  sufficient  in  the  absence  of  an  express  agreement 
upon  the  subject.^    In  New  York  if  a  tenant  enters  under  a 

1  Smith,  Land.  &  Ten.  21,  22  ;  Wms.  Real  Prop.  326 ;  2  Prest.  Abs.  25;  Tud. 
Cas.  14;  Lesley  v.  Randolph,  4  Rawle,  123;  Right  v.  Darby,  1  T.  R.  159,  per 
Buller,  J. ;  Ridgley  v.  Stillwell,  28  Mo.  400;  Patton  v.  Axley,  5  Jones,  L.  440. 

-  Secor  V.  Pestana,  35  111.  528. 


602  LAW   OF   REAL   PROPERTY.  [bOOK   I. 

parol  lease,  void  as  being  within  the  statute  of  frauds,  the 
landlord  must  give  one  month's  notice  in  order  to  determine 
it ;  his  tenancy  therefore  is  one  from  month  to  month,  deter- 
minable by  notice  to  quit.^ 

2.  This  change  of  tenancies  at  will  into  estates  from  year  to 
year  was  the  result  of  judicial  legislation,  as  a  measure  of 
equity  as  well  as  sound  policy,  though,  as  has  already  been 
seen,  numerous  cases  were  still  left  of  tenancies  strictly  at 
will.2 

3.  An  agreement  to  pay  rent  on  the  part  of  the  tenant  is 
regarded  as  an  essential  element  of  a  tenancy  from  year  to 
year,  and  the  times  at  which  it  is  payable  must  have  reference 
to  a  yearly  holding,  such  as  by  the  year,  quarter,  or  some 
aliquot  part  of  a  j-ear.^ 

4.  It  will  be  sufficient  to  establish  a  tenancy  from  5^ear  to 
year,  to  show  an  entry  under  a  general  letting,  or  a  letting 

for  an  indefinite  time,  and  either  an  agreement  to  pay 
[*383]  rent  *  measured  by  the  year  or  its  aliquot  parts,  or  an 

actual  payment  of  rent  if  none  was  originally  fixed 
and  agreed  upon ;  and  such  tenancy,  once  established,  will 
continue  until  determined  by  notice  to  quit,  or  some  other 
sufficient  legal  cause.**  It  has  accordingly  been  held  that 
when  the  hiring  is  for  a  term  which  is  within  the  statute  of 
frauds,  and  the  lessee  enters,  it  will  be  regarded  as  a  tenancy 
from  year  to  year.     But  the  landlord  having  refused  to  give 

*  Note.  —  Though  rent  is  actually  paid,  however,  it  is  not  conclusive  of  the 
fact  of  a  tenancy,  —  it  may  be  explained  by  either  payer  or  receiver.  Doe  v. 
Crago,  6  C.  B.  90;  Tud.  Cas.  15;  contra,  Bishop  v.  Howard,  2  B.  &  C.  100. 

1  People  V.  Darling,  47  N.  Y.  666.  2  4  Kent,  Com.  115. 

3  Richardson  v.  Landgridge,  4  Taunt.  128 ;  Tud.  Cas.  14  ;  Jackson  v.  Bradt, 
2  Caines,  169;  Doe  v.  Baker,  4Dev.  220;  Roe  v.  Lees,  2  W.  Bl.  1173  ;  Williams 
V.  Deriar,  31  Mo.  1 ;  Doidge  v.  Bowers,  2  M.  &  W.  3G5;  Chamberlin  v.  Donahue, 
45  Vt.  50 ;  Rich  v.  Bolton,  46  Vt.  87. 

*  Lesley  v.  Randolph,  4  Rawle,  123;  Id.  129;  Com.  Land.  &  Ten.  7,  8; 
Squires  v.  Huff,  3  A.  K.  Marsh.  17  ;  Knight  v.  Benett,  3  Bing.  361 ;  Hamerton 
V.  Stead,  3  B.  &  C.  478,  per  Littledale,  J. ;  Burton,  Real  Prop.  396,  n.  Thus, 
where  one  without  authority  lets  another's  land,  and  tlie  tenant  pays  rent  to 
owner,  it  creates  a  tenancy  from  year  to  year.  Md^owell  v.  Simpson,  3  Watts, 
129  ;  Lockwood  v.  Lockwood,  22  Conn.  425  ;  Roe  v.  Lees,  2  W.  Bl.  1173  ;  Hall  v. 
Wadsworth,  28  Vt.  412  ;  Hunt  v.  Morton,  18  111.  75  ;  Ridgely  v.  Stillwell,  25  Mo. 
570;  Williams  v.  Deriar,  31  Mo.  1. ;  Cromraelin  v.  Thiess,  31  Ala.  419. 


CH.  XI.   §  2.]  ESTATES    AT    WILL.  603 

a  lease,  and  having  denied  the  tenant's  right  to  occupy,  and 
he  thereupon  quit,  it  was  held  that  he  was  not  liable  for  rent 
while  he  did  so  occupy. ^  A  general  tenancy  in  Indiana  is  one 
from  year  to  year.  It  is  otherwise,  if  made  for  the  term  of  a 
single  year.  But  the  lessor  could  not  determine  the  lease 
during  the  year  for  non-payment  of  rent,  unless  the  terms  of 
the  hiring  contained  a  condition  to  that  effect.^  But  author- 
izing one  to  go  upon  land  and  cut  wood  thereon,  at  an  agreed 
price  per  cord,  and  his  entering  thereon  and  cutting  and  paying 
for  the  wood  cut  for  several  months  in  succession,  was  held 
not  to  be  a  tenancy  from  year  to  year,  but  strictly  one  at  will, 
nor  was  the  contractor  entitled  to  notice  to  quit.^ 

5.  But  where  the  demise  is  for  one  year  or  other  term  cer- 
tain, no  notice  to  quit  is  necessary,'^  though  if  the  tenant  holds 
over  he  may  be  held  at  the  election  of  the  lessor  as  tenant  for 
rent  at  the  rate  originally  reserved,  and  also  by  the  payment 
and  receipt  of  rent  or  other  act  expressly  recognizing  the  ten- 
ancy. Such  holding  over  may  be  converted  into  a  tenancy 
from  year  to  year,  upon  the  same  terms  as  the  former  hold- 
ing, including  amount  and  times  of  payment  of  rent  as  far  as 
applicable  to  the  situation  of  the  parties.^  But  where  the  mili- 
tary authority  of  the  country  entered  upon  premises  held  by  a 
lessee  and  occupied  the  same  beyond  the  term  of  his  lease,  he 
was  not  held  liable  to  his  lessor  for  rent  after  the  expiration 
of  his  term.^ 

1  Greton  v.  Smith,  33  N.  Y.  249 ;  Lounsberry  v.  Snyder,  31  N.  Y.  517. 

2  Brown  v.  Bragg,  22  Ind.  123. 

3  Ivitchen  v.  Pridgen,  3  Jones,  L.  49.  See  Decaton  v.  Strickland,  3  Jones, 
L.  61. 

*  Jackson  v.  McLeod,  12  Johns.  182;  Cobb  v.  Stokes,  8  East,  858 ;  Logan  v. 
Herron,  8  S.  &  R.  459;  Lesley  v.  Randolph,  4  Rawle,  126  ;  Messenger  v.  Arm- 
strong, 1  T.  R.  53 ;  Right  v.  Darby,  Id.  159. 

5  Jackson  v.  M'Leod,  12  Johns.  182;  Barlow  v.  Wainwright,  22  Vt.  88;  4 
Kent,  Com.  112;  Conway?;.  Starkweather,  1  Deuio,  113;  Bedford  v.  McElher- 
ron,  2  S.  &  R.  49  ;  IVIoshier  v.  Reding,  12  Me.  478  ;  Harkins  v.  Pope,  10  Ala.  493  ; 
Wms.  Real  Prop.  326,  n. ;  Bacon  v.  Brown,  9  Conn.  334  ;  De  Young  v.  Buchanan, 
10  Gill  &  J.  149;  Whittemore  v.  Moore,  9  Dana,  315 ;  Moore  v.  Beasley,  3  Ohio, 
294 ;  Jackson  v.  Salmon,  4  Wend.  327  ;  Laguerenne  v.  Dougherty,  35  Penn.  St. 
45;  Crommelin  v.  Thiess,  31  Ala.  418;  Com.  Land.  &  Ten.  354;  Brewer  v. 
Knapp,  1  Pick.  332  ;  Roe  v.  Ward,  1  H.  Black,  99.  And  this  would  be  true 
although  tlie  holding  be  by  a  sub-lessee  of  the  tenant,  if  no  new  contract  has 
been  made  with  lessor.     Dimock  v.  Van  Bergen,  12  Allen,  552. 

«  Constant  v.  Abell,  36  Mo.  174;  14  Am.  Law.  Reg.  443. 


COi  LAW  OF  REAL  PROPERTY.  [BOOK  1. 

6.  But  merely  suffering  a  tenant  to  hold  over  without  any 
act  of  assent  on  the  part  of  the  landlord,  unless  so  long  as 
to  raise  a  legal  presumption  of  a  new  letting,  will  not  change 
the  holding  into  a  tenancy  against  the  will  of  the  lessor,  or 
prevent  his  maintaining  an  action  of  trespass  or  ejectment 

against  the  tenant  as  a  tort  feasor.^ 
[*384]  *7.  But  trespass  will  not  lie  in  favor  of  a  lessor 
against  his  tenant  for  merely  holding  over,  until  he 
shall  have  entered  and  regained  possession  of  the  premises. 
And  such  would  be  the  law  before  notice  to  quit  given,  in  the 
case  of  a  tenant  at  will  who  holds  over  after  the  determination 
of  the  estate  by  the  death  of  the  lessor.^ 

8.  A  tenancy  from  year  to  year,  though  indeterminate  as  to 
duration  until  notice  given,  has  many  of  tlie  qualities  and  in- 
cidents of  a  term  for  years,  and,  when  notice  has  been  given, 
the  term  is  regarded  as  for  a  definite  period,  expiring  with  the 
time  of  the  notice.  It  would,  among  other  things,  go  to  the 
personal  representatives  of  the  tenant  on  his  death. ^  It  might 
be  assigned.*  The  lessor  might  be  liable  to  the  tenant  for 
trespass  quare  clausum,  in  the  same  manner  as  in  case  of  an 
estate  for  years.^  The  lessor  and  tenant  would  have  the  same 
rights  in  respect  to  acts  of  strangers  which  they  would  have  in 
a  tenanc}'  for  years.^  And  their  rights  in  respect  to  each  other 
would  be  the  same,  in  case  of  a  holding  over  by  such  a  tenant, 
as  in  case  of  an  estate  for  years.''     And  the  tenant  would  be 

1  Den  V.  Adams,  7  Halst.  99;  Conway  v.  Starkweatlier,  1  Denio,  117  ;  Hemp- 
hill V.  Flynn,  2  Penn.  St.  144;  Tud.  Cas.  17  ;  Whiteacre  v.  Synionds,  10  East, 
13.  And  the  lessor  has  a  right  to  hold  a  tenant  at  will  as  trespasser  after  due 
notice  to  quit.  Ellis  v.  Paige,  1  Pick.  43  ;  Rising  v.  Stannard,  17  Mass.  282 ; 
Danforth  v.  Sargeant,  14  Mass.  491 ;  Vrooman  v.  McKaig,  4  Md.  450 ;  Schuyler 
V.  Smith,  51  N.  Y.  315. 

■•i  Co.  Lit.  57  b ;  2  Bl.  Com.  150;  Turner  v.  Doe,  9  M.  &  W.  64G,  and  note  to 
Am.  ed. 

3  2  Prest.  Abs.  25;  Doe  v.  Porter,  3  T.  R.  13  ;  Tud.  Cas.  15  ;  Cody  v.  Quar- 
terman,  12  Ga.  386. 

*  Smith,  Land  &  Ten.  23 ;  2  Prest.  Abs.  25 ;  Botting  v.  Martin,  1  Camp.  317. 

6  Moore  v.  Boyd,  24  Me.  242.  In  Dickinson  v.  Goodspeed,  8  Cush.  119,  the 
tenant  at  will  had  trespass  against  the  lessor  for  entering  and  cutting  off  a  pump, 
before  giving  notice  to  quit ;  Cunningham  v.  Holton,  55  Me.  33,  38 ;  Same  v, 
Horton,  57  Me.  422. 

6  Clark  V.  Smith,  25  Penn.  St.  437;  Howard  v.  Merriam,  5  Cush.  5G3; 
French  v.  Fuller,  23  Fick.  107. 

^  See  cases  cited  abuve,  p.  *383,  n.  4. 


CH.  XI.  §  2.]  ESTATES    AT   WILL.  605 

liable  for  rent,  if  the  premises  burned  down.^  The  same  would 
be  the  law  in  those  States  where,  though  the  doctrine  of  ten- 
ancy from  year  to  year  has  not  been  adopted,  a  tenancy  at 
will  is  to  be  determined  by  a  notice  to  quit  of  a  definite  length 
of  time.^ 

9.  But  such  tenants  are  not  bound  to  make  substan- 
tial *  repairs  upon  the  premises,  except  b}^  express   [*385] 
stipulation  to  that  effect.^     And  where  a  tenant  from 

year  to  year  erected  a  dwelling-house  upon  the  premises,  under 
a  promise  from  the  lessor  to  give  him  the  estate,  which  he  failed 
to  do,  it  was  lield  that  he  might  recover,  for  such  improve- 
ments, of  the  lessor.  But  it  would  be  otherwise  in  the  case 
of  a  vendee  who  should  make  erections  on  his  own  account, 
though  the  vendor  refuse  to  deliver  a  deed  of  the  premises 
according  to  his  verbal  agreement  to  sell  and  convey  the 
estate."^  The  law  upon  the  subject  of  repairs,  as  stated  by  Mr. 
Piatt,  is  as  follows :  "  Independently  of  contract,  a  tenant 
from  year  to  year  must  keep  the  premises  wind  and  water 
tight,  and  make  fair  and  tenantable  repairs,  as  by  putting 
fences  in  order,  or  replacing  windows  or  doors  that  are  broken 
during  his  occupation,  but  he  is  not  liable  for  the  mere  wear 
and  tear  of  the  premises,  nor  answerable  if  they  are  burned 
down,  nor  bound  to  repair  if  they  become  ruinous  by  any 
other  accident,  nor  to  replace  doors  and  sashes  worn  out  by 
time,  to  put  a  new  roof  on,  or  make  similar  substantial  repairs, 
or  what  are  called  general  repairs."  ^ 

10.  The  necessity  of  notice,  in  order  to  determine  a  tenancy, 
applies  as  well  to  the  tenant  as  the  lessor,  the  rule  being  the 
same  as  to  both.^ 

11.  When  notice  to  quit  has  been  given,  it  may  be  waived, 
and  the  tenancy  will  in  that  case  be  re-established  upon  its 
former  footing.  This  waiver  may  be  shown  in  vaiious  ways, 
such  as  by  the  payment  and  receipt  of  rent  accruing  subse- 

1  Izon  v.  Gorton,  5Bing.  N.  C.  501. 

-  French  v.  Fuller,  23  Pick.  107  ;  Howard  v.  Merriam,  5  Cush.  563. 

8  Gott  V.  Gandy,  22  E.  L.  &  Eq.  173. 

*  Smith  V.  Smith,  4  Dutch,  216 ;  Gillet  v.  Maynard,  5  John.  85. 

5  2  Piatt  on  Leases,  182. 

6  Morehead  v.  Watkyns,  5  B.  Mon.  228 ;  Johnstone  v.  Huddlestone,  4  B.&  C. 
922;  Hall  v.  Wadsworth,  28  Vt.  410. 


606  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

quent  to  the  expiration  of  the  notice,^  or  by  distraining  for 
such  rent,^  or  giving  a  new  notice  to  quit  at  a  time  subsequent 
to  the  first.^  Though  in  all  these  cases  it  is  a  question  of  in- 
tention, and  even  the  receipt  of  rent  may  not  be  conclusive, 
but  open  to  explanation.* 

12.  The  mere  demand  of  such  rent  by  the  landlord  would 
not,  of  itself,  be  a  waiver  of  such  notice,  but  would  be  com- 
petent evidence  for  the  jury  to  that  effect.^ 

13.  The  tenant's  liability  for  rent  continues  till  he  puts  an 
end  to  the  estate  by  notice,  whether  he  continue  to  occupy 
the  premises  or  not.^ 

14.  If  a  tenant  from  year  to  year  commit  voluntary  waste, 
he  forfeits  all  right  to  notice  to  quit,  as  he  thereby  determines 

his  estate.'' 
[*386]       *15.  The  subject  of  notice,  as  a  mode  of  determining 

estates  at  will  and  tenancies  from  year  to  year,  is  so 
important,  that  it  should  be  presented  distinctly  by  itself.  In 
most  respects  the  same  rules  apply,  except  in  the  matter  of 
time,  to  notices,  which  are  necessary  to  determine  tenancies 
from  3'ear  to  year  as  to  tenancies  at  will.  Since  for  every 
other  purpose  except  the  notice  to  quit,  as  preliminary  to  an 
action  of  ejectment  by  the  lessor,  tenancies  at  will  retain  their 
original  character.^  If  the  demise  be  by  three,  notice  by  two 
will  not  be  sujBicient  to  lay  the  foundation  for  summary  pro- 

1  Prindle  v.  Anderson,  19  Wend.  391  ;  Goodright  v.  Cordwent,  6  T.  R.  219  ; 
Collins  V.  Canty,  6  Cush.  415.  Where,  after  notice,  the  landlord  accepted  the 
rent  due  at  the  time  of  notice,  expressly  reserving  and  not  waiving  liis  right 
under  the  notice,  it  was  held  that  the  payment  did  not  affect  the  notice.  Kim- 
ball V.  Rowland,  6  Gray,  224. 

•^  Zouch  )•.  WiUingale.  1  H.  Bl.  811.  3  Doe  v.  Palmer,  16  East,  53. 

4  Doe  V.  Humphreys,  2  East.  2.37,  a  second  notice  proved  not  to  be  intended 
to  waive  the  first.  Messenger  v.  Armstrong,  1  T.  R.  53 ;  Doe  v.  Batten,  Cowp. 
243,  where  acceptance  of  rent  was  allowed  to  be  explained,  as  not  being  intended 
as  a  waiver  of  notice.  See  also  Kimball  v.  Rowland,  6  Gray,  224.  But  see 
Prindle  v.  Anderson,  19  Wend.  394 ;  Goodright  v.  Cordwent,  6  T.  R.  219 ;  Jack- 
eon  V.  Sheldon,  5  Cow.  448. 

6  Blyth  V.  Dennett,  16  E.  L.  &  Eq.  424. 

6  Barlow  v.  Wainwright,  22  Vt.  88 ;  Whitney  v.  Gordon,  1  Cush.  206 ;  Hall 
V.  Wadsworth,  sup. ;  Parson  v.  Goodale,  8  Allen,  203 ;  Walker  v.  Furbush,  11 
Cush.  366  ;  Withers  v.  Larrabee,  48  Me.  573. 

T  Phillips  V.  Covert,  7  Johns.  1 ;  Perry  v.  Carr,  44  N.  H.  120. 

8  Nichols  V.  WUliams,  8  Cow.  13 ;  ante,  p.  *879. 


CH.  XI.  §  2.]  ESTATES   AT   WILL.  607 

ceedings  to  eject  the  tenant ;  all  ought  to  join,  each  acting  in 
reference  to  his  own  share. ^ 

16.  Such  notice  will  be  sufficient  if  by  parol,  unless  required 
by  agreement  of  the  parties  or  some  statute  to  be  in  writing,^ 
though  it  must  be  direct  and  express,  and  not  in  the  alterna- 
tive, as  to  quit  or  do  something  else.  Though  where  the  notice 
Avas  accompanied  with  a  declaration,  that,  if  the  tenant  did  not 
quit,  the  lessor  would  insist  on  double  rent,  it  was  held  to  be 
a  good  one.^ 

17.  Whether  a  longer  or  shorter  time  of  notice  is  required, 
it  must,  in  order  to  be  binding,  clearly  indicate  the  time  when 
the  tenancy  is  to  expire,  and,  of  course,  must  be  given  a  suffi- 
cient number  of  days  before  the  time  so  indicated.* 

18.  And  the  notice  must  be  so  made  as  to  expire  at  the  end 
of  the  time  during  which  the  tenant  may  lawfully  hold  ;  if  from 
year  to  year,  at  the  end  of  the  year,  or  if  from  quarter  to  quar- 
ter, month  to  month,  and  the  like,  it  must  expire  at  the  end 
of  such  quarter  month,  and  the  like.^  In  New  York,  if  the 
tenancy  be  at  will,  a  month's  notice  determines  it,  although 
the  time  fixed  for  leaving  the  premises  be  one  day  anterior  to 
the  full  month,  provided  the  landlord  do  not  disturb  the  ten- 
ant until  one  full  month  after  the    service   of  the   notice.^ 

1  Pickard  v.  Perley,  45  N.  H.  195. 

2  Tud.  Cas  16  ;  Timmins  v.  Rowlinson,  3  Burr.  1607,  s.  c.  1  W.  BI.  533  ;  Doe 
V.  Crick,  5  Esp.  196.  And  wliere  the  notice  was  oral,  no  objection  was  made  to 
its  sufficiency  on  that  account.     Hanchet  v.  Whitney,  1  Vt.  311. 

3  Tud.  Cas.  16;  2  Crabb,  Real  Prop.  429;  Doe  i'.  Jackson,  Doug.  175;  Doe 
r.  Goldwin,  2  Q.  B.  143;  Smith,  Land.  &  Ten.  237. 

*  Hanchet  v.  Whitney,  1  Vt.  311 ;  Steward  v.  Harding,  2  Gray,  335 ;  Currier 
V.  Barker,  2  Gray,  224.  And  it  was  held  in  the  last  case  cited,  that  this  principle 
applied  where  a  landlord  sought  to  put  an  end  to  a  lease  in  writing  by  notice  to 
quit  for  non-payment  of  rent.  A  notice  to  quit  "on  the  11th  of  October  ne.xt, 
or  when  the  tenant's  tenancy  might  expire,"  was  held  too  uncertain  as  to  its  ex- 
piration. Mills  V.  Goff,  14  M.  &  W.  72;  Huyser  v.  Chase,  13  Mich.  102;  Wood- 
row  V.  Michael,  13  Mich.  190;  Hultain  v.  Munigle,  6  Allen,  220. 

6  Comyn,  Land.  &  Ten.  405;  Prescott  m.  Elm,  7  Cush.  346;  Godard  v.  S.  C. 
Railroad,  2  Rich.  (S.  C.)  -346;  Lloyd  v.  Cozens,  2  Ashm.  131;  2  Crabb,  Real 
Prop.  425;  Hanchet  v.  Whitney,  1  Vt.  311 ;  Doe  v.  Donovan,  1  Taunt.  555;  Doe 
V.  .Morphett,  7  Q.  B.  577 ;  Currier  v.  Barker,  2  Gray,  224 ;  Baker  v.  Adams,  5 
Cush.  99;  Sanford  v.  Harvey,  U  Cush.  98;  Oakes  v.  Monroe,  8  Cush.  282; 
Johnson  v.  Stewart,  11  Gray,  181  ;  Cunningham  v.  Helton,  65  Me.  33,  38;  Same 
V.  Horton,  57  Me.  422. 

6  Burns  v.  Bryant,  31  N.  Y.  468. 


608  LAW  OF  REAL  PROPERTY.  [BOOK  L 

Where  rent  is  payable  monthly  on  the  first  day  of  the  month, 
notice  on  the  first  day  of  one  month  to  quit  on  the  first  of  the 
following  month  is  sufficient.^ 

19.  As  a  notice  is  technical,  and  fixes  the  time  at 
[*387]  which  *  the  tenant  is  bound  to  quit  and  the  landlord 
has  a  right  to  enter,  and  the  time  at  which  rent  ceases, 
it  is  important  to  have  a  definite  rule  as  to  the  time  from  which 
such  notice  is  to  be  computed.  Thus,  if  the  tenant  comes  in 
at  the  middle  of  a  quarter,  and  pays  rent  on  the  regular  quar- 
ter-days, his  year,  in  a  tenancy  from  year  to  year,  commences 
at  the  first  regular  quarter-day,  and  notice  to  quit  must  con- 
form to  that  time. 2  And  where  different  parts  of  the  premises 
were  entered  on  different  days,  the  tenancy,  for  purj^oses  of 
notice,  is  construed  to  begin  on  the  day  w^hen  the  principal 
part  of  the  estate  was  entered  on,  W'hich  is  a  question  for  the 
jury.^  But  a  notice  to  quit  a  j)art  only  of  premises  leased  to- 
gether would  be  bad.*  And  during  the  pendency  of  notice 
to  a  tenant  to  quit,  his  rights  are  the  same  as  if  he  held  by  a 
written  lease,  and  he  may  have  trespass  qu.  cl.freg.  against 
his  own  landlord,  while,  for  an  injury  to  the  freehold  hj  a 
stranger,  the  landlord's  remedy  would  be  case  instead  of  tres- 
pass.^ 

20.  In  the  interpretation  of  notice,  however,  courts  are  not 
strict ;  the  notice  must  be  understood  in  order  to  be  effective  ; 
but  if  the  time  is  so  indicated  that  the  party  notified  will  not 
be  misled,  it  will  be  sufficient.^  Nor  will  a  misdescription  of 
the  place  invalidate  the  notice,  if  the  tenant  be  not  thereby 
misled.'' 

1  Walker  v.  Sharpe,  14  Allen,  43. 

2  Doe  V.  Johnson,  6  Esp.  10;  Doe  v.  Stapleton,  3  Car.  &  P.  275. 

3  Doe  V.  Snowdon,  2  W.  Bl.  1224;  Doe  v.  Spence,  6  East,  120;  Doe  v.  Wat- 
kins,  7  East,  551 ;  Doe  i^.  Howard,  11  East,  498 ;  Doe  v.  Hughes,  7  M.  &  W. 
139. 

*  Doe  V.  Arclier,  14  East,  245;  Sanford  v.  Harvey,  11  Cush.  93. 

5  Dickinson  v.  Goodspeed,  8  Cush.  119  ;  Frencli  v   Fuller,  28  Pick.  107. 

•>  Smith,  Land  &  Ten.  237  ;  Doe  c.  Morphett,  7  Q.  B.  577  ;  Sanford  v.  Harvey, 
11  Cush.  93  ;  Doe  v.  Kightley,  7  T.  R.  59.  In  the  latter  case,  notice  in  1795  was 
given  to  quit  at  a  time  in  1795,  already  passed,  being  an  obvious  mistake  for 
1796.  Doe  v.  Smith,  5  A.  &  E.  350 ;  Doe  i'.  Hughes,  7  M.  &  W.  189 ;  Granger 
V.  Brown,  11  Cush.  191. 

'  Doe  d.  Cox  V. ,  4  Esp.  185 ;  Doe  v.  Wilkinson,  12  A.  &  E.  743. 


CH.  XI.  §  2.]  ESTATES    AT   WILL.  609 

21.  And  if  the  tenant  states  a  day  to  the  lessor's  agent  as 
the  end  of  the  term,  and  the  lessor's  notice  conform  to  that, 
it  will  bind  the  tenant,  though  he  was  mistaken  in  respect  to 
it.i 

22.  In  respect  to  the  service  of  the  notice,  it  must  be  on 
the  landlord's  own  tenant,  and  not  a  sub-tenant  of  his  lessee. 
The  sub-lessee  would  be  bound,  so  far  as  legal  proceedings  for 
possession  of  the  premises  are  concerned,  by  notice  to  the 
landlord's  lessee.^  Where  the  premises  let  was  a  shop,  and 
the  lessee  took  a  partner,  but  no  new  contract  was  made  with 
the  lessor,  notice  served  upon  the  partner  in  the  absence 
of  the  lessee  and  wife  was  held  sufficient  to  determine  the  ten- 
ancy at  will.^  And  it  may  either  be  personal,  or,  as  a  general 
rule,  it  may  be  left  at  the  dwelling-house  of  the  tenant 

with  a  *  servant,  though  it  may  not  be  upon  the  prem-  [*388J 
ises.^     But  if  merely  left  upon  the  premises,  it  will  not 
be  sufficient,  unless  it  appear  that  it  came  to  the  hands  of  the 
tenant.^     If  given  by  one  of  several  joint  lessors,  it  will  be  a 
notice  by  all.^ 

23.  The  length  of  time  required  in  order  that  a  notice  to 
quit  should  operate  to  determine  a  tenancy  at  will,  answering 
to  the  English  tenancy  from  year  to  year,  varies  in  different 
States.  By  the  English  common  law,  from  the  time  of  Henry 
VIII.,  it  has  been  six  months,  and  must  expire  at  the  end  of 
the  3^ear.'^  The  same  rule  is  adopted  in  New  York,  North 
Carolina,  Tennessee,  Vermont,  New  Jersey,  Illinois,  and  Ken 

1  Doe  V.  Lambly,  2  Esp.  635. 

2  Pleasant  v.  Benson,  14  East,  234 ;   Eoe  v.  Wiggs,  2  Bos.  &  P.,  N.  R.  330 
Eatstat  V.  Packard,  7  Cush.  245 ;   Schilling  v.  Holmes,  23  Cal.  231  ;  Birdsall  v. 
Phillips,  17  Wend.  464. 

8  Walker  v.  Sharpe,  103  Mass.  154. 

*  Smith,  Land.  &  Ten.  240,  and  note ;  Doe  v.  Dunbar,  1  Mood.  &  M.  10  ; 
Jones  V.  Marsh,  4  T.  R.  464;  Widger  v.  Browning,  2  Car.  &  P.  523;  Tud. 
Cas.  17. 

5  Doe  V.  Lucas,  5  Esp.  163 ;  Alford  v.  Vickery,  1  Car.  &  M.  280.  In  the  latter 
case  a  notice  was  put  under  the  tenant's  door,  but  it  was  shown  to  have  come  to 
his  hands  before  the  six  months  previous  to  the  expiration  of  the  year. 

6  Doe  V.  Summersett,  1  B.  &  Ad.  135 ;  Alford  v.  Vickery,  1  Car.  &  M.  280 ; 
Doe  V.  Hughes,  7  M.  &  W.  139.  But  see  Pickard  v.  Perley,  45  N.  H.  195 ;  ante, 
*379. 

7  Bessell  v.  Landsberg,  7  Q.  B.  638 ;  Doe  i;.  Watts,  7  T.  R.  83 ;  2  Flint,  Real 
Prop.  219.     But  where  the  tenant  gave  notice  of  quitting  which  was  in  proper 

VOL.  I.  39 


610  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

tiickj.i  In  Pennsylvania,  Soutli  Carolina,  and  New  Hamp- 
shire, the  term  is  three  months,  ending  at  the  expiration  of 
the  year.2 

24.  It  may  be  repeated,  that  in  those  cases  which  do  not 
come  within  the  notion  of  estates  strictly  at  will,  which  re- 
quire no  notice  to  determine  them,  and  do  not,  from  the 
nature  of  the  tenancy,  come  within  the  class  of  estates  from 
year  to  year,  from  being,  by  implication,  for  some  definite 
period  less  than  a  year,  as  for  a  quarter,  a  month,  a  week, 
and  the  like,  the  time  of  notice  is  measured,  ordinarily,  by 
the  length  of  the  term  specified  as  the  interval  between  the 
times  of  payment  of  rent  and  the  notice,  and  must,  if  not  regu- 
lated by  statute,  be  equal  to  one  of  these  intervals,  and  must 

end  at  the  expiration  thereof.^ 
[*389]       *  25.  In  Massachusetts,  the  subject  of  terminating 

an  estate  at  will,  b}^  notice,  is  regulated  by  a  statute, 
which  requires  the  notice  to  be  in  writing,  and  if  the  tenancy 
be  for  an  indefinite  period,  or  longer  than  a  quarter,  or  for  a 
quarter,  the  notice  is  to  be  that  of  a  quarter ;  if  for  a  less 
period,  or  the  rent  is  payable  oftener  than  quarterly,  the  no- 
tice is  to  be  equal  to  the  interval  of  such  payment,  with  a 
provision  for  a  briefer  notice  where  rent  shall  be  in  arrear.* 

26.  But  the  distinction  should  be  borne  in  mind  between 
the  notice  required  by  the  statutes  of  some  of  the  States  to 
determine  an  estate  at  will,  and  that  which  is  required  as 


form  and  time,  and  he  actually  had  removed  from  the  premises,  it  was  held  that 
his  accidentally  retaining  the  key  two  days  beyond  the  proper  time  did  not  avoid 
the  notice.     Gray  i>.  Bompas,  11  C.  B.  n.  s.  520. 

^  Jackson  v.  Bryan,  1  Johns.  322,  per  Tompkins,  J. ;  4  Kent,  Com.  113;  Den 
V.  Mcintosh,  4  Ired.  291 ;  Trousdall  v.  Darnell,  6  Yerg.  431 ;  Hanchett  t\  Whit- 
ney, 1  Vt.  315  ;  Barlow  v.  Wainwright,  22  Vt.  88 ;  Den  v.  Drake,  2  Green  (N.  J.) 
623;  Den  v.  Blair,  3  Green  (N.  J.),  181 ;  Squires  v.  Huff,  3  A.  K.  Marsh.  17  ; 
Sullivan  v.  Enders,  3  Dana,  66 ;  Morehead  v.  Watkyns,  5  B.  Mon.  228 ;  Hunt  v. 
Morton,  18  111.  75. 

2  Logan  V.  Herron,  8  S.  &  R.  459  ;  Lesley  v.  Randolph,  4  Rawle,  123  ;  Lloyd 
V.  Cozens,  2  Ashm.  131 ;  Godard  v.  S.  C.  Raikoad,  2  Rich.  (S.  C.)  346 ;  Floyd 
V.  Floyd,  4  Rich.  (S.  C.)  23;  Currier  v.  Perley,  4  Fost.  (N.  H.)  219. 

8  Taylor,  Land.  &  Ten.  50 ;  Right  v.  Darby,  1  T.  R.  159 ;  Smith,  Land.  & 
Ten.  24;  Doe  v.  Hazell,  1  Esp.  94;  Sanford  v.  Harvey,  11  Cush.  93  ;  Prescottu. 
Elm,  7  Cush.  346. 

*  Mass.  Gen.  Stat.  1860,  c.  90,  §  81 ;  Howard  v.  Merriam,  5  Cush.  563. 


CH.  XI.  §  2.]  ESTATES   AT   WILL.  611 

preliminary  to  enforcing  legal  measures  to  expel  the  tenant. 
The  former  are  alone  referred  to  here.* 

26  a.  The  effect  of  accepting  rent,  by  the  way  of  reviving 
a  tenancy  which  has  once  been  forfeited  by  failure  to  pay 
rent,  or  has  been  terminated,  so  far  as  giving  notice  may  have 
that  effect,  seems  to  be  this.  If  rent  is  in  arrear  under  a 
tenancy  at  will,  the  landlord  may  terminate  the  tenancy  by 
giving  fourteen  days'  notice  without  any  previous  demand  of 
the  rent ;  and  should  he,  after  giving  such  notice,  receive  the 
rent  so  due,  he  would  not  thereby  revive  the  lease,  if,  at  the 
time  of  receiving  the  same,  he  gives  notice  of  his  intent  not 
to  waive  his  right  to  claim  the  possession  of  the  premises.^ 
But  if  he  accepts  rent  without  any  such  notice  of  his  intent, 
especially  if  he  accepts  rent  accruing  after  the  date  of  such 
notice,  it  is  considered  as  a  waiver  of  what  he  may  have  done 
towards  terminating  the  tenancy  at  will.^ 

27.  Another  mode  of  determining  estates  at  will,  including 
estates  from  year  to  year,  is  by  surrender,  which  is  substan- 
tially a  yielding  up  of  possession  by  the  tenant  to  the  lessor, 
or  him  who  has  the  reversion,  which  may  be  legally  inferred 
from  the  acts  of  the  parties  as  well  as  their  express  words, 
such  as  abandoning  the  premises  by  the  tenant,  and  the  assum- 

*  Note.  —  There  are  in  England,  and  in  many  of  the  States,  summary  methods 
provided  by  statute  to  enable  a  landlord  to  recover  possession  of  leased  premises, 
in  some,  if  not  all,  of  which  a  preliminary  notice  of  a  prescribed  length  of  time 
must  be  given  before  commencing  proceedings.  But  as  the  subject  relates  to 
the  remedies  of  landlords  rather  than  to  the  nature  of  estates  at  will,  and  the 
rights  of  landlords  and  tenants  in  respect  to  such  estate,  it  is  purposely  omitted 
here.  Stat.  1  &  2  Vict.  c.  74;  Taylor,  Land.  &  Ten.  346;  Smith,  Land.  &  Ten. 
245,  n.,  Morris'  ed. ;  Mass.  Gen.  Stat.  1860,  c.  137,  §  2  ;  Howard  v.  Merriam,  6 
Cush.  563;  Granger  v.  Brown,  11  Gush.  191 ;  Sanford  v.  Harvey,  11  Gush.  93  ; 
Rooney  v.  Gillespie,  6  Allen,  75 ;  Raynor  v.  Haggard,  18  Mich.  72  ;  Dudley  v. 
Lee,  39  111.  339 ;  Alexander  v.  Garew,  13  Allen,  70.  An  eviction  of  lessee  by 
summary  proceedings  does  not  affect  his  liability  for  past  rent;  it  only  applies  to 
what  is  future.    Johnson  v.  Oppenheim,  65  N.  Y.  294. 

1  Kimball  v.  Rowland,  6  Gray,  224;  Mass.  Gen.  Stat.  1860,  c.  90,  §  31. 

2  Tuttle  V.  Bean,  13  Met.  275 ;  Collins  v.  Canty,  6  Cush.  415.  See  Norris  v. 
Morrill,  43  N.  H.  218,  commenting  on  the  above  cases,  and  maintaining  that 
merely  accepting  rent  accrued  before  the  termination  of  the  tenancy  is  not  a 
waiver  of  notice.  It  seems,  after  all,  a  mere  question  of  intent.  Farson  v. 
Goodale,  8  Allen,  202. 


612  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

ing  possession  thereof  by  the  lessor.^  But  leaving  the  key 
with  the  lessor  does  not  amount  to  a  surrender,  if  he  do  not 
accept  it  as  such,^ 

28.  A  tenancy  at  will  may  be  determined  by  an  alienation 

in  fee  of  the  premises  by  the  lessor,^  or  a  valid  lease 
[*390]   of  the  *  same  for  years  to  a  stranger,*  and,  from  the 

time  that  this  is  known  by  the  tenant,  he  becomes  a 
tenant  at  sufferance,  and  is  not  entitled  to  notice  to  quit. 
But  where  the  lessor  is  himself  a  tenant  at  will,  he  could  not 
by  a  second  lease,  though  in  writing,  give  such  second  lessee 
any  right  to  dispossess  the  first.  Both  would  be  liable  in 
trespass  to  the  original  lessor,  under  whom  their  lessor  was 
tenant  at  will.  Nor  would  such  lessee  of  the  tenant  at  will 
be  estopped  to  show  that  he  had  parted  with  whatever  inter- 
est he  had,  or  had  lost  it  by  eviction  by  a  superior  title.^ 
But  where  the  tenant  at  will  assigned  his  interest  to  another 
as  his  tenant  at  will,  and  then  the  original  lessor  made  a  lease 
in  writing  to  a  stranger,  it  was  held  that  twelve  days'  notice 
by  him  to  the  assignee,  of  his  lease  and  also  to  quit,  was  more 
than  sujSicient  to  authorize  him  to  bring  process  to  remove 
such  tenant.^  But  he  is,  nevertheless,  entitled  to  a  reasona- 
ble time,  after  such  notice,  and  notice  to  quit,  in  which  to 
remove.  In  one  case  it  was  held  that  "  nearly  forty-eight 
hours"  was  a  reasonable  notice,  before  removing  the  tenant. 
And  by  a  statute  of  Massachusetts,  if  such  tenant  hold  pos- 
session after  becoming  a  tenant  at  sufferance,  he  shall  be  liable 
to  pay  rent  for  the  time  he  retains  possession.  Nor  can  the 
tenant  whose  tenancy  at  will  is  thus  determined  by  a  sale  of 
the  premises  by  the  lessor,  object  that  it  was  done  with  the 


1  Comyn,  Land.  &  Ten.  337;  Thomas  v.  Cook,  2  B.  &  Aid.  119;  Nickells  v. 
Atherstone,  10  Q.  B.  944 ;  Whitney  w.  Meyers,  1  Duer,  266 ;  Smith,  Land.  & 
Ten.  231,  n.,  Morris'  ed. 

2  Withers  v.  Larrabee,  48  Me.  573 ;  Cannan  v.  Hartley,  9  M.  G.  &  S.  635 ; 
Walker  v.  Furbush,  11  Cush.  366  ;  Townsend  v.  Albers,  3  E.  D.  Smith,  560. 

8  Howard  v.  Merriam,  5  Cush.  563 ;  Benedict  v.  Morse,  10  Met.  223 ;  Curtis 
V.  Galvin,  1  Allen,  216;  Bunton  v.  Richardson,  10  Allen,  260. 
*  Kelly  V.  Waite,  12  Met.  300. 
6  Hilbourn  v.  Fogg,  99  Mass.  11. 
6  Clark  V.  Wheelock,  99  Mass.  15. 


CH.  XI.  §  2.]  ESTATES    AT    WILL.  613 

intent  thus  to  determine  it,^  or  by  the  death  of  the  lessor  or 
lessee,^  though  it  seems,  if  the  tenancy  be  from  year  to  year, 
the  death  of  either  would  not  determine  it.*  ^ 

29.  If,  after  a  determination  of  a  tenancy  by  notice,  the 
lessee  continues  to  hold  the  premises,  and  the  landlord  accepts 
rent  for  the  same,  it  will  be  regarded  as  a  renewal  of  the  ten- 
ancy upon  the  former  terms.* 

30.  If  the  tenancy  is  determined  by  notice,  the  lessor  may, 
if  he  please,  enter  and  take  possession  of  the  premises  by 
force  if  necessary.^  And  where  the  written  notice  was  di- 
rected to  John,  when  the  tenant's  name  was  Thomas,  but 
was  handed  to  the  tenant's  wife  at  the  dwelling-house  in  his 
absence,  commanding  the  person  to  whom  it  was  directed  to 
quit  the  dwelling-house  "  you  now  hold  under  me,"  it  was 
held  to  be  sufficient ;  and  the  time  of  the  notice  having  ex- 
pired, and  the  lessee  having  failed  to  remove,  the  lessor 
entered  in  the  absence  of  the  lessee,  and  removed  his  goods, 
and  fastened  the  door.  It  was  held  that  the  lessor  was  justi- 
fied in  so  doing,  although  the  goods  were  injured  by  remain- 
ing exposed  to  the  weather.^ 

31.  It  remains  to  consider  the  effect  of  the  statutes  of  frauds 

*  Note.  —  The  above  cases,  aflftrming  the  dissolution  of  a  tenancy  at  will  by 
certain  acts  and  events  independent  of  notice,  were  decided,  as  will  be  observed, 
in  Massachusetts,  where  the  doctrine  of  tenancies  from  year  to  year  is  not 
adopted.  And  it  would  seem,  from  such  tenancies  being  regarded  elsewhere  as 
terms,  that  the  principle  established  in  the  above  cases  can  only  apply  where  the 
same  rule  as  to  tenancies  is  adopted,  as  in  Massachusetts.  See  also  People  v. 
Darling,  47  N.  Y.  666. 

1  Curtis  V.  Galvin,  1  Allen,  215 ;  Rooney  v.  Gillespie,  6  Allen,  74 ;  Pratt  v, 
Farrar,  10  Allen,  520 ;  Mizner  v.  Munroe,  10  Gray,  292 ;  Bunton  v.  Richardson, 
10  Allen,  260 ;  Mass.  Gen.  Stat.  c.  90,  §§  25,  26. 

2  Ferrin  v.  Kenny,  10  Met.  294. 

3  Comyn,  Land.  &  Ten.  286  ;  Doe  v.  Porter,  3  T.  R.  16. 

*  Goodright  v.  Cordwent,  6  T.  R.  219. 

5  Taunton  v.  Costar,  7  T.  R.  431 ;  Miner  o.  Stevens,  1  Gush.  482 ;  Meader  v. 
Stone,  7  Met.  147 ;  Harvey  v.  Brydges,  14  M.  &  W.  437 ;  Hyatt  v.  Wood,  4 
Johns.  150 ;  Overdeer  v.  Lewis,  1  Watts  &  S.  90.  See  contra,  Newton  v.  Har- 
land,  1  Mann.  &  G.  644,  Coltman,  J.,  dissenting.  See  this  subject  further  dis- 
cussed, post,  c.  12,  §  1,  pi.  10;  Mugford  v.  Richardson,  6  Allen,  76 ;  Stevens  v 
Sampson,  59  Me.  568. 

ti  Clark  V.  Keliher,  107  Mass.  406. 


614  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

upon  parol  leases,  as  it  will  be  found  that  these  vary  essen- 
tiall}'  in  theii"  provisions  in  respect  to  such  leases.  But  it  is 
believed  they  all,  with  the  exception  of  New  York,  agree  in 
this,  that  if  the  agreement  to  let  be  executory,  and  not  con- 
summated by  the  lessee's  taking  possession,  it  cannot  be 
enforced ;  if  it  be  by  parol,  the  statute  prohibits  any  action 
upon  such  a  con  tract. ^ 

32.  If  the  lessee  takes  possession,  the  question  arises  whether 
by  the  statute  of  frauds  the  lease  is  binding  as  an  agreement 
at  common  law,  or  the  tenancy  under  it  is  a  mere  tenancy  at 

will,  or  the  lease,  as  such,  is  to  be  deemed  void. 
[*391]       *  33.  If  the  lease  does  not  exceed  three  years  from 

the  time  of  making^  it  is,  by  the  English  statute  29 
Car.  II.  c.  3,  §§  1,  2,  as  valid  and  binding  as  if  no  such 
statute  had  been  enacted.^  The  same  is  the  rule  in  Georgia, 
Indiana,  Maryland,  North  Carolina,  Pennsylvania,  New  Jer- 
sey, and  South  Carolina.  This  term  in  Florida  is  two,  and  in 
the  following  States  one  year ;  namely,  Alabama,  Arkansas, 
Cahfornia,  Connecticut,  Delaware,  Iowa,  Kentucky,  Michi- 
gan, Mississippi,  New  York,  Nevada,  Rhode  Island,  Tennessee, 
Texas,  Virginia,  and  Wisconsin.  In  Maine,  Massachusetts, 
Missouri,  New  Hampshire,  Ohio,  and  Vermont,  all  such  leases 
create  tenancies  at  will  only.^ 

34.  Although  parol  leases  are,  in  the  cases  before  enu- 
merated, declared  by  these  statutes  mere  estates  at  will,  or  in 
some  cases  void,  yet  if  the  lessee  enters  and  occupies,  and  pays 
rent  under  them,  he  becomes  a  tenant  from  year  to  year,  in 
those  States  where  such  tenancies  are  recognized,  or  a  tenant 
at  will  in  others,  with  the  rights  as  to  notice  of  such  tenants.* 


1  Browne,  Stat.  Frauds,  §  37 ;  Edge  v.  Strafford,  1  Tyrw.  293  ;  Larkin  v. 
Avery,  23  Conn.  304 ;  Delano  v.  Montague,  4  Cush.  42 ;  Young  v.  Dake,  1  Seld. 
463. 

2  Bolton  V.  Tomlin,  5  A.  &  E.  856 ;  Rawlins  v.  Turner,  1  Ld.  Raym.  736. 

3  Browne,  Stat.  Frauds,  501-532;  Adams  v.  McKesson,  53  Penn.  St.  83; 
Birckhead  v.  Cummings,  4  Vroom,  44 ;  Morrill  v.  Mackman,  24  Mich.  286 ;  Lob- 
dell  V.  Hall,  3  Nev.  517. 

*  Clayton  v.  Blakely,  8  T.  R.  3 ;  McDowell  v.  Simpson,  3  Watts,  129  ;  Peo- 
ple V.  Rickhert,  8  Cow.  226 ;  Drake  v.  Newton,  3  N.  J.  Ill ;  Lockwood  v.  Lock- 
wood,  22  Conn.  425 ;  2  Smith,  Lead.  Cas.  76,  n.,  Am.  ed. 


CH.  XI.  §  2.]  ESTATES   AT   WILL.  615 

35.  And  in  the  cases  embraced  in  the  above  section,  the 
rights  of  the  parties  will  be  governed  by  the  terms  of  the 
original  letting,  as  agreed  upon  by  the  parties,  so  long  as 
the  holding  continues.^ 

1  Browne,  Stat.  Frauds,  §  39 ;  Schuyler  v.  Leggett,  2  Cow.  660 ;  Barlow  v. 
Wainwright,  22  Vt.  88 ;  Doe  v.  BeU,  6  T.  R.  471 ;  HolUs  v.  Pool,  3  Met.  350;  Cur- 
rier V.  Barker,  2  Gray,  224. 


616  LAW  OP  REAL  PROPERTY.  [bOOK  1 


CHAPTER   XII. 

TENANCIES  AT  SUFFERANCE,  LICENSES,  ETC. 

Sect.  1.     Tenancies  at  Sufferance. 
Sect.  2.    License. 

SECTION  I. 

TENANCIES   AT   SUFFERANCE. 

1.  What  constitutes  a  tenant  at  sufferance. 

2.  Who  is  such  tenant. 

3.  Tenancy  at  sufferance  only  grows  out  of  agreement. 
4,  5.  Of  the  nature  of  such  tenancy. 

6.  Tenant  has  no  privity  of  estate,  nor  is  liable  to  trespass  or  for  rent. 

7.  Possession  of  such  tenant  not  adverse  to  the  owner. 

8.  When  the  owner  may  have  trespass  against  him. 

9.  Effect  of  tenant's  assigning,  in  making  possession  adverse. 

10.  Of  the  right  of  the  owner  to  enter  upon  his  tenant. 
10  a.     How  far  owner  may  use  force  to  eject  a  tenant. 

10  b.     Same  subject  with  cases  cited. 

11.  Tenants  not  entitled  to  notice  to  quit. 

1.  When  a  tenant  has  come  rightfully  into  possession  of 
lands  by  permission  of  the  owner,  and  continues  to 
[*393]  occupy  the  *  same  after  the  time  for  which,  by  such 
permission,  he  has  a  right  to  hold  the  same,  he  is  said 
to  be  a  tenant  by  sufferance.  In  the  language  of  the  element- 
ary writers,  "  he  is  one  who  comes  in  by  right,  and  holds  over 
without  right."  ^  He  holds  without  right,  and  yet  is  not  a 
trespasser.2  Thus  where  the  owner  of  land  brought  process 
of  ejectment  against  the  tenant,  and  a  judgment  was  rendered 
that  the  tenant  should  remove  by  such  a  time  or  be  expelled, 

1  2  Bl.  Com.  150 ;  Co.  Lit.  57  b ;    Smith,  Land.  &  Ten.  217 ;  Doe  v.  Hull,  2 
D.  &  R.  -38 ;  Russell  v.  Fabyan,  34  N,  H.  218. 

2  Uridias  v.  Morrell,  25  Cal.  35. 


CH.  XII.  §  1.]      TENANCIES   AT   SUFFERANCE,  LICENSES,  ETC.      617 

it  was  held  that  trespass  would  not  lie  against  him  for  retain- 
ing possession  until  the  expiration  of  the  time  prescribed.^ 
But  to  make  one  a  tenant  by  sufferance  in  California,  there 
must  be  some  laches  on  the  part  of  the  owner,  in  delaying  to 
make  entry  upon  his  tenant  after  the  expiration  of  his  term. 
And  in  such  case  he  must  give  his  tenant  a  month's  notice  to 
quit  before  he  can  enter  and  remove  him,  or  maintain  eject- 
ment against  him.^  But  if  he  demands  possession  of  his  ten- 
ant who  holds  over,  within  a  year  from  the  termination  of  his 
lease,  he  may  recover  possession  of  his  tenant  by  expelling 
him  without  first  making  a  formal  entry  upon  the  premises.^ 
But  this  permission  must  be  that  of  a  landlord  to  a  tenant ; 
if  it  be  an  occupancy  as  a  mere  matter  of  favor  or  accommo- 
dation, it  would  not  be  a  tenancy  at  sufferance. 

2.  Under  this  class  of  occupants  of  land  have  been  included 
tenants  per  autre  vie  after  the  death  of  the  cestui  que  vie^^  ten- 
ants for  years  whose  terms  have  expired,^  tenants  at  will 
whose  estates  have  been  determined  by  alienation  or  by  death 
of  the  lessor,^  or  by  the  happening  of  some  contingent  event 
upon  which  the  determination  of  an  estate  at  will  depended,^ 
undertenants  who  hold  after  the  expiration  of  the  term  of  the 
original  lessee,^  a  grantor  who  agrees  to  deliver  possession  by 
a  certain  day,  and  holds,  over.^  In  short,  any  one  who  con- 
tinues in  possession  without  agreement,  after  the  determina- 
tion of  the  particular  estate  by  which  he  originally  gained  it.^^ 
And  this,  even  though  the  original  contract  was  a  written 
lease  which  provided  for  the  recovery  of  rent,  pro  rata^  for 
the  time  the  tenant  should  hold  after  the  expiration  of  the 
lease. ^^  Thus,  where  the  lessee  underlet,  and  the  tenancy 
between  the  original  parties  to  the  lease  was  determined  by 

1  Campbell  v.  Loader,  3  H.  &  Colt.  520. 

-  Moore  v.  Morrow,  28  Cal.  654.     See  also  Rowan  v.  Lytle,  11  "Wend.  616. 

3  Uridias  i;.  Morrell,  sup.  <  Co.  Lit.  57  b. 

5  Co.  Lit.  57  b  ;  Jackson  v.  Parkhurst,  5  Johns.  128 ;  2  Bl.  Com.  150. 

6  Co.  Lit.  57  b ;  Kinsley  r.  Ames,  2  Met.  29 ;  Benedict  i;.  Morse,  10  Met.  223. 

7  Creech  v.  Crockett,  5  Cash.  133 ;  Elliott  v.  Stone,  1  Gray,  571. 

8  Simkin  v.  Ashurst,  1  Crorapt.  M.  &  R.  261 ;  Smith,  Land.  &  Ten.  25. 

9  Hyatt  V.  Wood,  4  Johns.  150. 

10  Cora.  Dig.  "  Estate,"  1. 1 ;  Burton,  Real  Prop.  §  56  ;  Livingston  v.  Tanner, 
12  Barb.  481 ;  2  Flint,  Real  Prop.  222 ;  Smith  v.  Littlefield,  51  N.  Y.  543. 

11  Edwards  v.  Hale,  9  Allen,  462. 


618  LAW   OF  EEAL   PROPERTY.  [bOOK   I. 

the  original  lessor,  such  sub-tenant  became  thereby  a  tenant 
at  sufferance  to  the  original  lessor.^  So  where  husband  and 
wife  conveyed  land  by  deed,  which  deed  was  void  as  to 
the  wife,  it  was  held  that,  although  it  conveyed  the  husband's 
interest  for  life,  the  moment  he  died  the  purchaser  became  a 
tenant  at  sufferance  to  the  wife.  Nor  could  the  tenant  pur- 
chase in  a  new  title  from  a  third  person  and  set  it  up  against 
the  wife's  claim  to  recover,  without  first  surrendering  posses- 
sion to  her .2  The  following  cases  may  serve  to  illustrate 
some  of  the  foregoing  popositions :  B  was  tenant  for  life  with 
a  remainder  to  A,  who,  acting  as  his  agent,  leased  the  prem- 
ises to  C  for  three  years,  he  knowing  that  he  acted  as  agent. 
B  died  at  the  end  of  one  year,  and  A  conveyed  the  estate  to 
the  plaintiff,  who  sued  C  for  possession.  It  was  held  that  C's 
estate  determined  upon  B's  death,  and  that  from  that  time  he 
was  tenant  at  sufferance,  and  the  plaintiff  recovered.^  A,  own- 
ing land,  and  being  about  to  leave  the  country,  requested  B  to 
take  charge  of  it  during  his  absence,  and  he  let  it  to  C.  It 
was  held  that  A's  return  determined  the  lease,  and  that  C 
thereby  became  a  tenant  at  sufferance.* 

3.  But  in  order  to  have  a  tenancy  grow  into  one  by  suffer- 
ance, it  must  originally  have  been  created  by  agreement  of  the 
parties,  for  where  one  was  in,  like  a  guardian,  by  act  of  the 
law,  and  held  after  his  ward  arrived  at  age,  he  was  a  tort 
feasor,  intrudor,  abator,  or  trespasser,  and  not  a  tenant  at 
sufferance.^ 

4.  And  so  far  does  the  principle  that  regulates  the  relation 
of  landlord  and  tenant  between  them  apply,  that  a  tenant  at 
sufferance  will  not  be  admitted  to  question  the  title  of  his 
lessor  in  an  action  to  recover  possession  of  the  land.^ 

5.  And  yet  a  holding  by  sufferance  is  rather  like  a  tenancy 
between  landlord  and  tenant  than  in  fact  such  a  tenancy,  for 
it  is  defective  in  one  of  the  elements  of  such  a  tenancy,  namely, 

an  agreement  express  or  implied  by  which  it  is  con- 

[*394]  tinned.     The  *  monient  the  parties  agree,  the  one  to 

hold  and  the  other  to  permit  him  to  hold  possession,  it 

1  Evans  v.  Eeed,  5  Gray,  308.  2  Griffin  v.  SI  effield,  38  Miss.  390. 

8  Page  V.  Wight,  14  Allen,  182.  *  Antoni  v.  Belknap,  102  Mass.  196. 

6  Co.  Lit.  57  b  ;  2d  Inst.  134  ;  Merrill  v.  Bullock,  105  Mass.  491. 
6  Jackson  v.  M'Leod,  12  Johns.  182. 


CH.  XII.  §  1.]      TENANCIES   AT   SUFFERANCE,  LICENSES,  ETC.       619 

becomes  a  tenancy  at  will,  or  from  year  to  j^ear,  and  ceases  to 
be  one  at  sufferance,^  and  sucli  would  be  the  effect  of  paying 
and  receiving  rent  for  the  time  the  tenant  should  hold  over.^ 
6.  There  is  neither  privity  of  contract  nor  of  estate  between 
the  owner  and  tenant,  for  the  tenant  is  not  in  by  contract,  nor 
has  he  any  estate  which  he  can  transfer  or  transmit,  or  which 
can  be  enlarged  by  release.  He  has  a  mere  naked  possession 
without  right  of  notice  to  quit.  But  though  this  possession  is 
wrongful,  he  is,  for  technical  reasons,  not  liable  in  trespass 
by  reason  thereof.  His  holding  is  by  the  laches  of  the  owner, 
who  may  enter  at  any  moment  and  put  an  end  to  the  same. 
But  until  that  has  been  done  he  cannot  have  trespass  against 
the  tenant  for  such  occupation. ^  And  where  he  has  made 
such  entry,  he  may  treat  the  tenant  as  a  trespasser  in  holding 
over,  or  any  one  holding  under  him.^  But  neither  tenant  at 
will  nor  tenant  at  sufferance  can  maintain  trespass  against 
lessor  for  making  a  peaceable  entry  upon  the  premises.^  If, 
after  the  expiration  of  a  tenant's  term,  his  landlord  bring  a 
writ  of  entry  at  common  law  to  recove;*  possession,  the  judg- 
ment which  he  recovers  embraces  the  mesne  profits  to  which 
he  will  be  entitled.  But  if  he  sues  out  the  process  of  forcible 
entry  and  detainer,  and  thereby  obtains  possession  of  the 
premises,  he  may  after  that  sue  trespass  for  mesne  profits 
against  the  tenant.^  Nor  could  he,  at  common  law,  recover 
rent  for  such  possession,  it  being  the  owner's  own  laches  in 
suffering  him  to  retain  it.''    A   tenant  at   sufferance  is  not 

1  Smith,  Land.  &  Ten.  26 ;  Watkins,  Conv.  24. 

2  Smith,  Land.  &  Ten.  219-221 ;  Russell  v.  Fabyan,  84  N.  H.  223;  Emmons 
V.  Scudder,  116  Mass.  367. 

3  2  Bl.  Com.  150;  Watkins,  Conv.  24  ;  Jackson  v.  Parkhurst,  5  .Johns.  128; 
4  Kent,  Com.  117.  "  One  tenant  at  sufferance  cannot  make  another,"  per  Lord 
Ellenborough,  Thunder  v.  Belcher,  3  East,  451 ;  Layman  v.  Throp,  11  Ired.  352. 

4  Curl  V.  Lowell,  19  Pick  27;  Butcher  v.  Butcher,  7  B.  &  C.  399;  Hey  v. 
Moorhouse,  6  Bing.  N.  C.  52. 

5  Esty  V.  Baker,  50  Me.  334. 

6  Sargent  v.  Smith,  12  Gray,  426 ;  Raymond  v.  Andrews,  6  Cusli.  265. 

■^  2  Bl.  Com.  150,  Chitty's  note  ;  Sir  Moil  Finch's  case,  2  Leon.  143  ;  Tud.  Cas. 
9.  This  point  is  noticed  but  left  undecided  by  the  court  in  Delano  v.  Montague, 
4Cush.  42;  Flood  w.  Flood,  1  Allen,  217,  confirms  the  statement  in  the  text. 
But  now  see  Mass.  Gen.  Stat.  c.  90,  §  25,  creating  such  liability  on  part  of  ten- 
ant;  Merrill  w.  Bullock,  105  Mass.  490;  Cunningham  y.  Holton,  55  Me.  33,  38 ; 
Same  v.  Horton,  57  Me.  422 ;  Hogsett  v.  Ellis,  17  Mich.  368 ;  Bonney  v.  Foss, 
62  Me.  251,  that  he  is  liable  for  rent. 


620  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

entitled  to  emblements.^  And  the  defect  of  the  common  law, 
in  respect  to  its  holding  a  tenant  at  sufferance  exempt  from 
rent,  is  obviated  by  the  English  statutes,  4  Geo.  II.  c.  28, 
and  11  Geo.  II.  c.  19,  making  him  liable  for  double  rent  if 
he  holds  over  after  notice  to  quit.^  In  Pennsylvania  a  land- 
lord is  allowed  to  recover  against  a  tenant  who  holds  over 
without  distinguishing,  whether  it  is  in  the  nature  of  mesne 
profits  or  damages,  or  for  use  and  occupation.^  But  in  Massa- 
chusetts, in  order  to  recover  against  a  tenant  in  possession 
for  use  and  occupation,  he  must  hold  by  some  agreement  with 
the  plaintiff,  or  some  other  person  with  whom  he  is  in  privity. 
If  the  tenant  denies  the  plaintiff's  title,  or  that  he  holds  under 
him,  he  must  bring  trespass  or  ejectment  for  mesne  profits.'* 
So  where  one  holding  land  under  a  lease  which  expired  on 
the  1st  of  May  gave  notice  that  he  should  not  occupy  after 
the  expiration  of  his  lease,  but  did  so  until  the  14th  of  May, 
it  was  held  that,  at  the  election  of  the  lessor,  he  thereby  be- 
came tenant  from  year  to  year  at  the  former  rent,  or  he  might, 
if  he  so  elected,  hold  and  treat  him  as  a  trespasser.^  But  to 
constitute  a  tenancy  by  sufferance,  one  must  hold  an  estate  less 
than  a  fee,  and  subordinate  to  a  fee.  If  he  hold  by  a  title 
which  does  not  answer  these  conditions,  although  it  may  have 
failed  or  come  to  an  end,  it  would  not  render  him  a  tenant  at 
sufferance,  or  liable  as  such.^ 

7.  While  the  owner  cannot  treat  the  tenant  at  sufferance  as 
a  trespasser,  until  he  shall  have  gained  possession  of  the  prem- 
ises by  entry  thereon,'^  the  tenant  cannot  avail  himself  of 
his  possession  as  being  adverse  to  the  owner  for  the  purpose  of 
barring  his  claim  under  the  statute  of  limitations.^    And  the 

1  Doe  V.  Turner,  7  M.  &  W.  226. 

'  Smith,  Land.  &  Ten.  245.  And  similar  statutes  exist  in  New  York,  Dela- 
ware, South  Carolina,  and  Arkansas.  1  Stat,  at  Large,  697  ;  Rev.  Stat.  S.  C, 
1869,  p.  435 ;  Rev.  Stat.  520. 

8  Stockton's  Appeal,  64  Penn.  St.  63. 

*  Knowles  v.  Hull,  99  Mass.  562;  Merrill  v.  Bullock,  105  Mass.  491. 

6  Schuyler  v.  Smith,  51  N.  Y.  309,  314.  «  Cook  v.  Norton,  48  111.  20. 

■^  2  Bl.  Com.  150 ;  Co.  Lit.  67  b ;  Rising  v.  Stannard,  17  Mass.  282 ;  Newton 
«;.  Harland,  1  Mann.  &  G.  6-14 ;  Trevillian  v.  Andrew,  5  Mod.  384. 

*  Watkins,  Conv.  24,  Morley  &  Coote's  ed. ;  Smith,  Land.  &  Ten.  217  ;  Doe 
V.  Hull,  2  Dowl.  &  R.  38,  per  Abbott,  C.  J. ;  2  Smith,  Lead.  Cas.  5th  Am.  ed. 
532;  Tud.  Cas.  8.  By  stat.  3  &  4  Wm.  IV.  c.  27,  the  limitation  begins  to  run 
against  the  landlord  from  the  time  he  might  have  entered.    But  tliis  has  not 


CH.  XII.  §  1.]      TENANCIES    AT   SUFFERANCE,  LICENSES,   ETC.      621 

landlord  may  have  case  against  such  tenant  for  injuries  done 
to  the  premises  while  retained  by  him,  and  before  entry  made 
by  the  landlord.^ 

*  8.  It  seems  to  be  immaterial  that  the  owner  should  [*395] 
make  any  formal  declaration  of  the  intent  with  which 

he  enters,  if  he  actually  regains  his  possession.  He  may  then 
have  trespass  against  the  tenant  for  holding  adversely  to  him.^ 

9.  But  what  has  been  said  as  to  the  possession  of  a  tenant 
at  sufferance  not  being  adverse  to  that  of  the  owner,  does  not 
apply  to  the  case  of  one  coming  into  possession  as  assignee  or 
representative  of  such  tenant.  As  he  can  neither  assign  nor 
transmit  his  tenancy  at  sufferance,  whoever  comes  in  under 
him  will  hold  adversely  to  the  owner,  and  his  possession  may, 
under  the  statute  of  limitations,  in  process  of  time,  ripen  into 
a  good  title,  unless  he  shall  have  recognized  the  title  of  the 
owner,  and  that  he  held  under  him.^ 

10.  In  a  former  chapter,^  the  right  of  the  owner  to  enter 
and  regain  possession  of  premises  by  force,  after  a  tenancy  at 
will  had  been  determined,  was  somewhat  considered.  The 
question  has  been  much  discussed  in  England  as  well  as  this 
country,  in  respect  to  entering  thus  upon  a  tenant  at  suffer- 
ance and  expelling  him.  The  question  has  principally  grown 
out  of  stat.  5  Rich.  II.  c.  7,  forbidding  an  entry  to  be  made 
"  with  strong  hand  or  a  multitude  of  people,  but  only  in  a 
peaceable  and  easy  manner."  And  a  similar  statute  has  been 
passed  in  most  or  all  of  the  States.^     Would  the  owner  of 

been  followed,  as  is  said,  in  any  of  the  United  States.  Smith,  Land.  &  Ten.  218, 
n.,  Morris'  ed. ;  Edwards  v.  Hale,  9  Allen,  464,  465;  Colvin  v.  Warford,  20  Md. 
396;  Gwynn  v.  Jones,  2  Gill  &  J.  173. 

1  Kussell  V.  Fabyan,  34  N.  H.  218,  225. 

2  Dorrell  v.  Johnson,  17  Pick.  266 ;  Butcher  v.  Butcher,  7  B.  &  C.  399 ;  Key 
V.  Moorehouse,  6  Bing.  N.  C.  52  ;  Pearce  v.  Ferris,  10  N.  Y.  280.  This  is  not  in- 
tended to  apply  to  cases  where  the  statute  requires  the  landlord  to  give  formal 
notice,  in  order  to  avail  himself  of  the  summary  process  for  ejecting  a  tenant  at 
sufferance.     Livingston  v.  Farmer,  12  Barb.  480. 

8  2  Flint,  Real  Prop.  224 ;  Smith,  Land.  &  Ten.  217 ;  Watkins,  Conv.  25 ; 
Nepean  v.  Doe,  2  M.  &  W.  911 ;  Tud.  Gas.  8 ;  Fishar  v.  Prosser,  Cowp.  217  ; 
Eeckhow  v.  Sclianck,  43  N.  Y.  448. 

*  Ante,  p.  *390. 

5  For  what  entry  by  force  into  premises  in  the  possession  of  another  would 
not  come  within  the  meaning  of  "  forcible  entry."  See  Pike  v.  Witt,  104  Mass. 
695. 


622  LAW   OF  REAL   PROPERTY.  [BOOK   I. 

land  or  tenements,  who,  in  recovering  possession  of  the  same 
from  a  tenant  at  sufferance,  should  use  so  much  violence  as  to 
subject  him  to  indictment  for  a  breach  of  the  peace,  thereby 
become  liable  to  the  tenant  for  thus  ousting  him  ?  In  1840  it  was 

stated  by  Erskine,  J.,  that  the  question  had  never  before 
[*396]  been    brought  directly  before  *  the  court  sitting  in 

bench. ^  The  more  modern  doctrine  of  the  English 
courts  seems  to  be  in  accordance  with  the  opinion  of  Baron 
Parke,  expressed  in  the  following  terms :  "  I  should  have  no  diffi- 
culty in  saying  that  where  a  breach  of  the  peace  is  committed 
by  a  freeholder  who,  in  order  to  get  into  possession  of  his  land, 
assaults  a  person  wrongfully  holding  possession  of  it  against 
his  will,  although  the  freeholder  may  be  responsible  to  the 
public  in  the  shape  of  an  indictment  for  forcible  entry,  he  is 
not  liable  to  the  other  party ^  ^  And  the  law,  as  generally 
adopted  in  the  United  States,  may  be  assumed  to  be  substan- 
tially as  laid  down  by  Baron  Parke.  If  the  owner  of  land 
wrongfully  held  by  another  enter  and  expel  the  occupant,  but 

makes  use  of  no  more  force  than  is  reasonably  neces- 
[*397]  sary  to  *  accomplish  this,  he  will  not  be  liable  to  an 

action  of  trespass  quare  clausum,  nor  for  assault  and 
battery,  nor  for  injury  to  the  occupant's  goods,  although,  in 
order  to  effect  such  expulsion  and  removal,  it  becomes  neces- 
sary to  use  so  much  force  and  violence  as  to  subject  him  to 
indictment  at  common  law  for  a  breach  of  the  peace,  or  under 
the  statute  for  making  forcible  entry .^  In  accordance  with  the 
foregoing  propositions,  the  cases  cited  below  seem  fully  to 
sustain  the  doctrine,  that  trespass  will  not  lie  in  favor  of  a 
tenant  by  sufferance  against  his  landlord  for  entering  and 

1  Newton  v.  Harland,  1  Mann.  &  G.  644. 

2  Harvey  v.  Brydges,  14  M.  &  W.  442,  Alderson  and  Piatt,  BB.,  concurred; 
Turner  v.  Maymott,  1  Bing.  169;  Co.  Lit.  257  a,  Butler's  note,  199;  Kavanagh 
V.  Gudge,  7  Mann.  &  G.  316;  PoUen  v.  Brewer,  7  C.  B.  n.  s.  371. 

3  Hyatt  V.  "Wood,  4  Johns.  150;  Muldrow  ?;.  Jones,  Rice  (S.  C],  71;  Ives  v. 
Ives,  13  Johns.  235 ;  Jackson  v.  Farmer,  9  Wend.  201 ;  Jackson  v.  Seelye,  IG 
Johns.  197  ;  Beecher  v.  Parmele,  9  Vt.  352 ;  Johnson  v.  Hannahan,  1  Strobh. 
313 ;  Overdeer  v.  Lewis,  1  Watts  &  S.  90 ;  Sampson  v.  Henry,  13  Pick.  36,  s.  c. 
11  Pick.  379 ;  Meader  v.  Stone,  7  Met.  147 ;  Miner  v.  Stevens,  1  Gush.  482 ; 
Lackey  v.  Holbrook,  11  Met.  468 ;  Fifty  Associates  v.  Howland,  6  Gush.  214. 


CH.  XII.  §  l.j      TENANCIES   AT   SUFFERANCE,  LICENSES,   ETC.      623 

expelling  him  from  the  premises,  assuming,  of  course,  that  he 
uses  no  unnecessary  force  or  violence  in  so  doing.^ 

10  a.  Notwithstanding  what  has  already  been  said  upon 
the  subject,  it  is  difficult  to  draw  the  precise  line  between 
what  an  owner  may  or  may  not  do,  in  applying  force  in  re- 
gaining possession  of  premises  held  by  another  who  is  no 
longer  rightful  tenant  thereof,  in  light  of  some  of  the  more 
recent  decisions.  In  the  case  above  cited  of  Newton  v.  Har- 
land,  the  court  were  divided.  The  reporter  adds,  that  "  it 
has  not  been  decided  by  a  court  in  the  last  resort,  whether 
lawful  possession  necessarily  implies  possession  lawfully  ac- 
quired, and  whether  a  party  who  possesses  himself  violently 
of  his  own  property  is  for  ever  precluded  from  defending  his 
possession  against  a  wrongdoer."  And  he  cites  two  ca^es 
from  the  Year  Books,  9  Henry  VI.  19,  pi.  12,  and  15  Henry 
VII.  17,  pi.  12,  sustaining  the  doctrine  that  such  owner  would 
not  be  liable  in  trespass  to  the  tenant,  though  he  may  have 
subjected  himself  to  indictment  for  the  act.  Cresswell,  J.,  in 
Davis  V.  Burrell,^  says  "  the  doctrine  of  that  case  (Newton  v. 
Harland)  has  been  very  much  questioned."  In  Davison  v. 
Wilson,^  which  turned  chiefly  upon  the  form  of  the  pleas,  it 
was  held  that  in  an  action  of  trespass  for  breaking  and  enter- 
ing plaintiff's  dwelling-house,  and,  in  a  forcible  manner  and 
with  a  strong  hand,  putting  him  out  and  expelling  him  from 
the  same,  where  the  defendant  justified  as  the  owner  of  the 
house,  the  plea  was  held  to  be  a  good  answer  to  the  declara- 
tion, because  "  it  justified  that  which  is  the  gist  of  the  action." 
And  all  through  the  case,  the  court  seem  to  recognize  the 
distinction  between  what  would  make  an  owner  liable  in  such 
a  case  as  a  trespasser  in  a  civil  action,  and  as  a  criminal  upon 
an  indictment.  The  text  and  note  of  Kent's  Commentary 
state  the  law  on  this  general  subject  in  a  manner  somewhat 
variant  with  each  other,  the  note  declaring  the  law  of  New- 
ton V.  Harland  "  the  most  sound  and  salutary  doctrine."  * 
The  court  of  Kentucky^  held  that  the  English  statute  of 

1  Taunton  v.  Costar,  7  T.  R.  431 ;  Moore  v.  Mason,  1  Allen,  406  ;  Curtis  v, 
Galvin,  1  Allen,  216;  Mason  v.  Holt,  1  Allen,  46.  See  Todd  v.  Jackson,  2 
Dutch.  625;  Krevet  v.  Meyer,  24  Mo.  107  ;  Fuhr  v.  Dean,  26  Mo.  116,  118. 

2  Davis  V.  Burrell,  10  C.  B.  825.  s  Davison  v.  Wilson,  11  Q.  B.  890,  902. 
<  Kent,  118  and  n.                                  6  Tribble  v.  Frame,  7  J.  J.  Marsh.  601. 


624  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

forcible  entry  and  detainer  "  have  ever  been  so  construed  as 
not  to  affect  the  common-law  right  of  justifying  in  an  action 
of  trespass  qu.  cl.fr.,  the  forcible  entry  by  pleading  and  prov- 
ing a  right  of  entry ;  and  hence  liherum  tenementum  has, 
notwithstanding  those  statutes,  been  always  held  to  be  an 
effectual  plea  to  the  action  of  trespass."  And  a  like  doctrine 
is  held  in  the  cases  cited  below  from  the  New  York  courts.^ 
In  Maine,  the  law  is  stated  thus,  although  it  hardly  bears 
upon  the  question  now  to  be  determined :  "  While  an  entry 
to  determine  an  estate  is  lawful,  yet  if  the  tenant  should  be 
thrust  out  with  violence,  or  without  allowing  him  a  reason- 
able time  to  remove,  that  act  would  be  unlawful,  and  would 
be  such  a  violation  of  his  right  of  occupation,  for  a  special 
purpose^  as  to  enable  him  to  maintain  the  action  of  trespass, 
qu.  clausum.''  ^  But  the  court  of  Vermont  treat  the  question 
as  exceedingly  clear,  and  hold  that  a  tenant  who  is  forcibly 
expelled  by  his  landlord  may  have  trespass  qu.  cl.  f regit 
against  him  for  entering  and  expelling  him.^  Great  stress 
is  laid,  in  support  of  the  opinion  in  this  case,  upon  that  of 
Hillary  v.  Gay.*  In  Illinois,  though  in  one  case  the  court 
held  that  "  no  case  has  been  referred  to,  and  it  is  believed 
that  none  exists,  which  holds  that  a  trespasser,  or  a  person  in 
possession  as  a  wrong-doer,  can  recover  against  the  owner  of 
the  fee  with  right  of  possession,"  ^  yet,  in  a  more  recent 
case,*'  that  court  review  the  whole  subject  and  many  of  the 
cases  above  cited,  and  come  to  the  conclusion,  that  "  the 
statutes  of  forcible  entry  and  detainer  should  be  construed  as 
taking  away  the  previous  common-law  right  of  forcible  entry 
by  the  owner,  and  that  such  entr}^  must  therefore  be  held 
illegal  in  all  forms  of  action."  The  entirely  opposite  conclu- 
sions to  which  judges  seem  to  have  come  upon  this  subject 
may  be  traced,  it  would  seem,  to  whether  they  regarded  the 
statutes  of  forcible  entry  and  de.tainer  as  superseding  the 
common  law  in  the  matter  of  an  owner's  exercising  force,  if 

1  Jackson  v.  Farmer,  9  Wend.  201 ;    Hyatt  v.  "Wood,  4  Johns.  150 ;   Ives  v. 
Ives,  13  Johns.  235. 

2  Moore  v.  Boyd,  24  Me.  247. 

8  Dustin  V.  Cowdry,  23  Vt.  631,  647.        *  Hillary  v.  Gay,  6  C.  &  P.  284. 

6  Hoots  V.  Graham,  23  111.  84.  6  Keeder  v.  Purdy,  15  Law  Reg.  104. 


CH.  XII.  §  1.]      TENANCIES   AT   SUFFERANCE,   LICENSES,  ETC.      625 

necessary,  to  regain  possession  of  his  property,  or  as  designed 
to  guard  the  public  against  the  danger  of  violence  and  a 
breach  of  the  peace.  If  the  latter,  it  would  leave  parties,  for 
their  rights  and  remedies,  to  the  common  law,  as  some  of  the 
cases  above  cited  seem  to  do.  The  case  of  Meader  v.  Stone, 
which  has  already  been  cited,  has  been  regarded  as  a  leading 
one  on  this  subject.  But  one  or  two  more  recent  ones  may 
perhaps  be  considered  as  defining  the  views  of  the  court 
somewhat  more  distinctly.  In  one,  the  tenant  had  been  noti- 
fied to  quit;  and,  failing  to  do  so,  his  landlord  entered  and 
took  out  the  windows  and  took  off  the  door,  and  began  to 
remove  the  furniture,  when  the  tenant  resisted,  and  was  in- 
jured in  the  scuffle.  In  the  trial  of  an  indictment  for  this 
assault,  the  court  ruled  that  the  landlord  "  had  a  right  to 
resume  possession  without  process,  if  he  could  do  so  without 
a  breach  of  the  peace,"  and  that  he  "  had  no  right  to  eject 
the  tenant  by  actual  force,  although  regular  notice  to  quit 
had  been  given."  ^  This,  it  will  be  remembered,  was  the  case 
of  an  indictment.  In  a  civil  action  for  assault  and  battery,  the 
same  court  held,  under  like  circumstances  of  notice,  &c.,  that 
the  landlord  had  a  right  to  enter  and  remove  the  windows 
from  the  tenement,  if  his  entry  was  peaceable  and  without 
objection,  and  being  once  in,  the  tenant  could  not  resist  his 
removing  the  windows ;  and  if  he  did,  the  landlord  "  had  a 
right  to  use  as  much  force  as  was  necessary  in  order  to  over- 
come the  resistance."  ^  And  upon  a  review  of  all  these  cases, 
the  weight  of  authority  seems  to  be  in  favor  of  the  common- 
law  right  of  the  owner  of  land  to  recover  possession  of  his 
premises  by  force,  of  which  another  is  wrongfully  in  posses- 
sion, provided  no  more  is  employed  than  becomes  necessary 
by  the  resistance  interposed  by  the  tenant  to  prevent  his  re- 
gaining such  possession  peaceably,  especially  if  his  entry  be 
peaceable. 

10  h.  The  occasion  for  adding  any  thing  to  what  has  already 
been  said  upon  the  points  discussed  in  the  preceding  pages, 
is  to  be  found  in  the  practical  importance  of  defining  with 
accuracy  what  the  true  rule  of  law  in  such  cases  is,  and  the 

1  Commonwealth  v.  Haley,  4  Allen,  318. 

2  Mugford  V.  Richardson,  G  Allen,  76. 
VOL.  I.  40 


626  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

fact  that,  since  the  former  edition  was  prepared,  a  court  so 
much  entitled  to  respect  as  that  of  Illinois  has  come  to  a  con- 
clusion dire.ctly  opposed  to  what  appears  to  be  the  prevailing 
doctrine  in  a  majority  of  the  cases  above  referred  to.  The 
doctrine  of  Wilder  v.  House  ^  depends  mainly  upon  what  is 
settled  in  Reeder  v.  Purdy,^  and  the  latter  seems  to  have  been 
decided  mainly,  perhaps,  upon  what  is  held  to  be  the  law  of 
Illinois,  though  special  resj)ect  is  paid  in  it  to  the  case  of  Dus- 
tin  V.  Cowdry.^  The  Illinois  doctrine,  as  stated  in  Reeder  v. 
Purdy,  is  that,  "  in  this  State,  it  has  been  constantly  held  that 
any  entry  is  forcible,  within  the  meaning  of  the  statute,  that 
is  made  against  the  will  of  the  occupant ; "  and  it  is  there 
assumed  that  even  if  a  tenant  were  at  the  end  of  the  time  to 
remove  his  family  and  furniture  from  the  premises,  but  refused 
to  surrender  the  key,  and  claimed  possession,  and  the  landlord 
were  to  force  the  door  of  the  vacant  house,  he  might  thereby 
render  himself  liable  to  his  tenant  in  nominal  damages.  In 
this  resj^ect  the  case  is  directly  opposed  to  another  Vermont 
case,^  although  so  much  reliance  is  placed  upon  Dustin  v. 
Cowdry.  Before  commenting  upon  the  latter  case,  it  may 
be  proper  to  refer  to  the  cases  cited  below  as  sustaining  the 
Illinois  doctrine.^  The  position  taken  by  the  case  of  Dustin 
V.  Cowdry  is  so  much  in  advance  of  most  of  the  cases  which 
favor  a  similar  view  of  the  law,  and  the  language  of  the  court 
is  so  remarkable,  that,  although  once  before  referred  to,  it  be- 
comes necessary  to  recur  to  it  again.  In  giving  their  opinion, 
the  court  labor  to  show  the  distinction  there  is  between  the 
remedy  for  a  forcible  entry  under  the  statute  of  Rich.  II.  and 
that  of  Henry  VI.,  which,  it  is  said,  "  seems  to  have  been 
the  entering  wedge  to  most  of  the  modern  blundering  upon 
this  subject."  Under  the  statute  of  Henry  VI.,  "  the  party 
aggrieved  may  have  his  action  for  treble  damages  against  the 
party  expelling  him  by  force."  "  But  under  the  first  English 
statute  of  Rich.  II.,  no  such  remedy  was  given  to  the  party." 
Now,  in  the  case  to  which  those  remarks  applied,  and  in  set- 
tling which  the  statute  of  Henry  VI.  is  made  to  play  so  im- 

1  WiKler  v.  House,  48  111.  280  (1808).  2  Reeder  v.  Purdy,  41  111.  279. 

8  Dustin  V.  Cowdry,  23  Vt.  631.  *  Mussey  v.  Scott,  32  Vt.  82. 

6  Page  V.  De  Puy,  40  111.  512;   Phillips  v.  Springfield,  3U  111.  86. 


CH.  XII.  §  1.]      TENANCIES   AT   SUFFERANCE,  LICENSES,  ETC.      627 

portant  a  j)art,  the  tenant  who  had  been  expelled  was  a  mere 
tenant  at  will  without  any  pretence  of  title.  Whereas  the 
statute  of  Henry  VI.  relates  exclusively  to  cases  oi  freeholders 
who  have  been  expelled  by  force,  and  who,  in  an  action  there- 
for, may  not  only  recover  damages  but  possession  of  the  land 
itself,  dealings  in  that  respect,  with  the  seisin  of  the  land 
alone,  the  wrong-doer  being  a  disseisor,  the  injured  party  a 
disseisee.  And  in  the  head  note  of  the  reported  case,  the 
owner  of  the  land  who  had  expelled  the  tenant  at  will  is 
called  "  the  disseisor.''  The  cases  cited  below,  therefore, 
seem  to  clearly  negative  the  idea  that  such  cases  as  arise  out 
of  the  expulsion  by  force  of  tenants  at  will,  or  at  sufferance, 
come  within  the  provisions  of  the  statute  of  Henry  VI.^  On 
the  other  hand,  without  giving  the  language  of  the  courts  in 
the  cases  cited  below,  it  is  believed  that  they  have  a  direct 
tendency  to  sustain  the  doctrine  intended  to  be  maintained 
in  the  foregoing  paragraphs,  the  conclusion  of  one  of  which, 
10  a,  is  quoted  with  approval  by  the  court  of  New  Hamp- 
shire in  the  case  cited.  Want  of  space  precludes  a  more  ex- 
tended examination  of  them.^  In  the  case  of  Stearns  v. 
Sampson  (1871),  the  court  put  the  right  of  the  owner  of  a 
dweUing-house,  who  has  gained  an  entry  into  the  same  peace- 
ably, to  expel  a  tenant  wrongfully  holding  it,  as  being  "  the 
same  as  where  any  person,  having  entered  a  dwelling-house, 
refuses  to  quit  when  requested.''  "  Every  man's  house  is  his 
castle.  But  his  neighbor's  house,  where  he  has  no  legal  right 
to  be,  is  not  his  castle."  "  The  trespasser  in  his  neighbor's 
castle  must  remove  or  be  removed."  The  court  adds  that 
"  the  opinion  of  the  majority  in  this  case  (Newton  v.  Har- 
land)  is  alike  adverse  to  the  prior  as  well  as  the  subsequent 
decisions  of  the  English  courts  on  this  question." 

11.  Tenants  at  sufferance  are  not  entitled  to  notice  to  quit 
before  commencing  the  summary  process  for  their  removal 

»  Stat.  8  Hen.  VI.  c.  9,  §  6  ;  Willard  v.  Warren,  17  Wend.  262 ;  Cole  v.  Engle, 
8  B.  &  C.  409;  Hawk.  P.  C.  B.  1,  c.  64,  §§  15,  16;  King  v.  Arden,  3  Bulstr.  71  ; 
Sover's  Case,  1  Leon.  327;  Rex  v.  Dorniy,  1  Ld.  Rayni.  610. 

2  Stearns  v.  Sampson,  59  Me.  568;  Clark  v.  Keliher,  107  Mass.  406;  Sterling 
V.  Warden,  51  N.  H.  239  (1871) ;  Wood  v.  Phillips,  43  N.  Y.  158  (1871)  ;  Estes 
V.  Kelsey,  8  Wend.  560 ;  Winter  v.  Stevens,  9  Allen,  530 ;  Pratt  v.  Farrar,  10 
Allen,  521 ;  4  Am.  L.  Rev.  429-449  ;  Rollins  v.  Mooers,  25  Me.  195. 


628  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

provided .  by  statute,  or  an  action  of  ejectment,  where  the 
tenant  holds  over  after  the  determination  of  his  lease.^  In 
Michigan,  tenants  at  will  and  at  sufferance  are  put  on  the 
same  basis  as  to  notice,  in  determining  the  tenanc}^  unless 
the  tenancy  at  sufferance  has  become  such  by  the  determina- 
tion of  a  tenancy  by  notice.  But  the  court  divided  on  the 
point  whether,  after  a  sale  and  foreclosure  of  a  mortgage,  the 
mortgagor  is  entitled  to  notice  before  the  purchaser  can  com- 
mence proceedings  to  remove  him.^ 


sectio:n'  II. 

LICENSE. 

1.  Of  easements. 

2,  3.  Licenses  and  easements,  distinctions  between. 

4, 5.  Licenses  executory  and  executed. 

6.  Executed  licenses  excuse  acts  done. 

7, 8.  Wliat  licenses  revocable. 

9.  What  operates  to  revoke  a  license. 

10.  May  be  revoked,  if  merely  to  do  acts  on  licenser's  land. 
10  a.  Instances  of  revocable  licenses. 

10  6.    When  equity  restrains  a  revocation. 

11.  Easements  created  only  by  deed  or  prescription. 

12.  Not  revocable  if  connected  with  property  in  chattels. 

13.  May  be  irrevocable  if  to  affect  licenser's  easement  only. 
14, 15.    Effect  of  revocation  upon  rights  of  the  parties. 

1.  The  subjects  of  Easement  and  License  are  so  nearly  re- 
lated to  leases  and  tenancies  of  lands,  in  some  of  their  char- 
acteristics, that  it  seems  proper  to  notice  this  relation,  since 
it  is  sometimes  difficult  to  distinguish  between  them.^  An 
easement  is  always  distinct  from  the  occupation  and  enjoy- 
ment of  the  land  itself,  and  in  this  respect  differs  altogether 

1  Hollis  V.  Pool,  3  Met.  350;  Mason  v.  Denison,  11  Wend.  012;  Young  v. 
Smith,  28  Mo.  65 ;  Howard  v.  Carpenter,  22  Md.  25  ;  Smith  v.  Littlefield,  61  N. 
Y.  543.  The  statute  requiring  notice  to  terminate  a  tenancy  "by  sufferance," 
only  applies  where  a  tenant  has  held  over  for  so  long  a  time  as  to  raise  a 
presumption  that  he  has  the  assent  of  the  lessor  so  to  do.  But  in  Michigan  it 
requires  three  months'  notice  to  determine  either  estates  at  sufferance  or  will. 
Bennett  v.  Robinson,  27  Mich.  32. 

2  Allen  V.  Carpenter,  15  Mich.  34.  8  Doolittle  v.  Eddy,  7  Barb.  74. 


CH.  XII.  §  2.]      TENANCIES   AT   SUFFERANCE,  LICENSES,  ETC.       629 

from  the  interest  of  a  lessee.  It  is  a  liberty,  privilege,  or  ad- 
vantage in  land,  without  profit,  distinct  from  an  ownership  of 
the  soil,  and  rests  upon  a  grant  by  deed  or  writing,  the  exist- 
ence and  execution  of  which  may  be  inferred  by  a  length  of 
enjoyment,  to  which  is  applied  the  term  prescription. ^ 
It  is  an  incorporeal  *  hereditament,  susceptible  of  a  [*398] 
permanent  enjoyment  by  one  man  in  another's  land, 
such  as  that  of  way,  or  hght,  or  air.^ 

2.  A  license  is  an  authority  to  do  a  particular  act  or  series 
of  acts  upon  another's  land,  without  possessing  any  estate 
therein.^  A  license  to  do  a  thing  includes  the  doing  what- 
ever is  necessary  to  accomplish  it,  as,  for  example,  to  remove 
a  heavy  object,  the  licensee  may  employ  the  necessary  men 
and  means  to  do  it.*  But  it  does  not  relieve  the  licensee  from 
responsibility  for  acts  done  carelessly  or  unskilfully.^  It  may 
be  granted  upon  condition  precedent ;  and  upon  the  licensee's 
failing  to  perform  this  his  license  will  become  inoperative 
and  of  no  effect.^ 

3.  An  easement  implies  an  interest  in  the  land  which  can 
only  be  created  as  above  stated,  by  writing,  or,  constructively, 
its  equivalent,  —  prescription.  A  license  may  be  created  by 
parol,  as  it  passes  no  interest  in  the  land,  though  a  permission 
to  use,  occupy,  or  take  the  profits  of  land,  is  sometimes  called 
a  license,  but  is  more  in  the  nature  of  a  lease.'''  It  matters 
not  whether  the  license  be  oral  or  in  writing,  in  respect  to  its 
being  parol,  if  the  paper  giving  it  have  no  requisites  of  a  grant.^ 
A  license  is  often  implied  by  the  act  of  the  owner  of  land : 

1  3  Kent,  Com.  452 ;  Gale  &  Whatley,  Easements,  12;  Doolittle  v.  Eddy,  7 
Barb.  74 ;  Morse  v.  Copeland,  2  Gray,  302 ;   Blaisdell  i-.  R.  Road,  51  N.  H.  485. 

2  Termes  de  Ley,  "Easement." 

8  Cook  V.  Stearns,  11  Mass.  533;  Taylor  v.  Waters,  7  Taunt.  374;  Miiniford 
V.  Whitney,  15  Wend.  380 ;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72 ;  Bridges  v.  Purcell, 
1  Dev.  &  B.  Law,  496 ;  Blaisdell  v.  R.  Road,  51  N.  H.  485. 

*  Sterling  v.  Worden,  51  N.  H.  227. 

6  Selden  v.  Del.  &  Hud.  Canal  Co.,  29  N.  Y.  640. 

6  Muraford  v.  Whitney,  15  Wend.  380;  Pratt  v.  Ogden,  34  N.  Y.22. 

■^  Wood  V.  Leadbitter,  13  M.  &  W.  838 ;  3  Kent,  Com.  452;  Gale  &  Whatley, 
Easements,  20;  King  v.  Horndon,  4  M.  &  Sel.  562;  Doolittle  v.  Eddy,  7  Barb.  74; 
Washb.  Ease.  5  ;  Ex  parte  Cob  win,  1  Cowen,  568;  Wallis  ik  Harrison,  4  M.  «& 
W.  543 ;  Thomas  v.  Sorrell,  Vaughan,  351 ;  Bailey  v.  Stephens,  12  C.  B.  n.  s. 
Ill ;  Muskett  v.  Hill,  5  Bing.  N.  C.  694. 

8  BlaisdeU  v.  R.  Road,  51  N.  H.  485 ;  Dodge  v.  McClintock,  47  N.  H.  383. 


630  Law  of  eeal  property.  [book  i. 

"  The  publican,  the  miller,  the  broker,  the  banker,  the  wharf- 
inger, the  artisan,  or  any  professional  man  whatever,  licenses 
the  public  to  enter  his  place  of  business  in  order  to  attract 
custom,  but  when  the  business  is  discontinued,  the  license  is 
at  an  end,"  per  Gibson,  C.  J.,  illustrating  the  doctrine  that 
when  one  opens  a  way  across  his  land  from  one  public 
thoroughfare  to  another,  it  would  be  regarded  as  a  license  to 
pass  over  it.^  So  a  familiar  intercourse  between  families  may 
be  evidence  of  a  general  license  to  pass  over  the  land  of  each 
other  for  the  purpose  of  visiting.^  And  one  has  a  license  to 
enter  a  post-office  at  proper  hours  to  inquire  for  and  receive 
mail-matter.^ 

4.  But  it  is  proposed  in  this  chapter  to  treat  only  of  the 
subject  of  licenses.  These  are  of  two  kinds,  one  called  execu- 
tory, where  the  act  licensed  to  be  done  is  yet  to  be  performed, 
the  other  executed  where  it  has  been  done.  The  distinction 
is  an  important  one,  as  bearing  upon  the  right  of  the  licenser 
to  revoke  the  license. 

5.  So  long  as  it  is  executory,  it  may  be  revoked  at  the 
pleasure  of  the  licenser,  for,  from  its  very  nature,  it  is  essen- 
tially different  from  a  grant  in  respect  to  carrying  with  it  the 
means  of  being  enforced  by  legal  or  equitable  process.*  Where 
A  and  B  mutually  gave  each  other  a  license  to  do  acts  upon 
the  other's  land,  it  was  deemed  to  be  an  executory  one,  even 
though  one  may  have  expended  money  upon  the  other's  land, 
relying  upon  such  license.  And  A  may  revoke  the  license 
on  his  part,  even  if  B  do  not  on  his.^ 

6.  If  it  has  been  executed,  it  has  the  effect  to  relieve  or  ex- 
cuse him  who  may  have  done  the  act  from  liability  on  account 
of  the  same,  as  well  as  from  the  consequences  thereof,  which 
may  arise  prior  to  a  revocation  of  the  license.^  Thus,  if  one 
by  license  of  another  tears  down  an  existing  mill-dam,  or  digs 

1  Gowen  v.  Phila.  Exchange  Co.,  5  W.  &  Serg.  141, 143 ;  Kay  v.  Penn.  R.  R., 
65  Penn.  St.  273. 

2  Martin  v.  Houghton,  45  Barb.  60 ;  Adams  v.  Truman,  12  Johns.  4U8. 

3  Sterling  v.  Warden,  51  N.  H.  231. 

*  Cook  V.  Stearns,  11  Mass.  533;  Mumford  v.  Whitney,  15  Wend.  380;  MU- 
ler  V.  Auburn  &  Syr.  R.  R.  Co.,  6  Hill,  61 ;  Sterling  v.  Worden,  51  N.  H.  227; 
Veghte  V.  Raritan  Co.,  4  C.  E.  Green,  154. 

6  Dodge  V.  McClintock,  47  N.  H.  383 ;  Houston  v.  Laffee,  46  N.  H.  505. 

6  Cook  V.  Stearns,  11  Mass.  533 ;  Sampson  v.  Buruside,  13  N.  H.  264 ;  Hew- 


CH.  XII.  §  2.]      TENANCIES   AT   SUFFERANCE,  LICENSES,  ETC.      631 

and  lays  an  aqueduct  in  the  other's  land,  or  cuts  a  tunnel  in 
his  land,  by  which  the  water  of  a  stream  is  diverted, 
or  cuts  down  *  a  tree  in  the  other's  land,  and  the  like,  [*399] 
no  action  will  lie  in  favor  of  such  land-owner,  how- 
ever much  he  may  be  injured  by  such  act.^  Nor  does  it  make 
any  difference  that  the  license  in  such  case  is  given  by  parol, 
since  the  statute  of  frauds  does  not  apply  to  executed 
licenses  like  these.^ 

7.  Questions  of  the  most  difficulty  in  respect  to  licenses 
arise,  where  the  one  who  grants,  seeks  to  revoke  the  license, 
after  the  party  to  whom  it  was  given  has  enjoyed  or  exercised 
it,  and  especially  where  he  has  incurred  expense  thereby,  as 
in  erecting  costly  structures  upon  the  land  of  the  licenser, 
or  upon  his  own  land,  affecting  the  land  of  the  licenser. 
Many  dicta  and  decisions  upon  this  class  of  cases  are  to  be 
found  in  the  books,  which  seem  to  conflict  with  each  other, 
and  what  is  now  understood  to  be  the  law.  Thus,  it  is  said, 
"  A  license  under  seal,  provided  it  be  a  mere  license,  is  as 
revocable  as  a  license  by  parol,"  and  "a  license  b}'"  parol, 
coupled  with  a  grant,  is  as  irrevocable  as  a  license  by  deed, 
provided  only  that  the  grant  is  of  a  nature  capable  of  being 
made  by  parol."  ^  But  even  if  the  license  be  so  granted  as  to 
be  effectual,  it  will  be  strictly  construed,  and  a  license  to 
build  a  dam  upon  the  licenser's  land  does  not  carry  a  license 
to  rebuild,  if  it  is  destroyed.* 

lins  V.  Shippam,  5  B.  &  C.  221 ;  Stevens  v.  Stevens,  11  Met.  251 ;  Foot  v.  New 
Haven  &  Nortliampton  Co.,  2.3  Com.  214 ;  Wood  v.  Leadbitter,  13  M.  &  W.  838 ; 
Syron  v.  Blakeman,  22  Barb.  336 ;  Selden  v.  Del.  &  Hudson  Canal  Co.,  29  N.  Y. 
639.  See  Web  v.  Paternoster,  Palmer,  71,  a  case  of  a  license  not  revocable ; 
Barnes  v.  Barnes,  6  Vt.  388 ;  Snowden  v.  Wilas,  19  Ind.  13 ;  Pratt  v.  Ogden,  34 
N.  Y.  20. 

i  Prince  v.  Case,  10  Conn.  378  ;  Fentiman  v.  Smith,  4  East,  107  ;  Sampson  v. 
Burnside,  13  N.  H.  264;  Kent  v.  Kent,  18  Pick.  569;  Bridges  v.  Pm-cell,  1  Dev. 
&  B.  L.  496  ;  Pratt  v.  Ogden.  sup. 

2  Tayler  v.  Waters,  7. Taunt.  374 ;  Woodbury  v.  Parshley,  7  N.  H.  287  ;  Wal- 
ter V.  Post,  6  Duer,  363. 

3  Wood  V.  Leadbitter,  13  M.  &  W.  845,  per  Alderson,  B.  See  also  Jackson 
V.  Babcock,  4  Johns.  418 ;  Wood  v.  Manley,  11  A.  &  E.  34 ;  Wallis  );.  Harrison,  4 
M.  &  W.  539;  Williamston,  &c.  R.  K.  v.  Battle,  66  N.  C.  545. 

*  Cowles  V.  Kidder,  4  Foster  (N.  H.),  364;  Carleton  v.  Redington,  1  Foster 
(N.  H.),  293;  Wingard  v.  Tift,  24  Geo.  179.  There  is  an  able  discussion  of  the 
subject  of  this  section,  especially  so  much  of  it  as  relates  to  flowing  lands,  by 
Judge  Cooley  of  Michigan,  in  2  Bench  and  Bar,  new  series,  97-106. 


632  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

8.  But  if  the  parties,  in  case  a  license  were  revoked,  would 
be  left  in  the  same  condition  as  before  it  was  given,  the  propo- 
sition seems  to  be  a  general  one,  that  the  licenser  may  revoke 
it  at  his  i:)leasure.  Such  would  be  the  case  in  respect  to  a 
license  to  fish  in  another's  water,  or  to  hunt  in  his  park,  or  to 
use  a  carriage-way,  and  the  like.' 

9.  A  license  is  generally  so  much  a  matter  of  personal  trust 
and  confidence  that  it  does  not  extend  to  any  one  but  the 
licensee.  The  death  of  either  party  will,  of  itself,  revoke  it. 
So  w^ould  a  transfer  or  alienation  of  the  interest  of  the  licenser 
or  licensee  in  the  subject-matter  of  the  license .^  Thus  where 
one  sold  standing  trees  by  parol,  it  was  held  to  be  a  license 
to  the  vendee  to  enter  and  cut  them.  But  he  could  not  sell 
the  trees  standing  to  a  third  person  and  transfer  his  license  to 

him,  because  it  was  in  its  nature  personal.^ 
[*400]       *  10.  Another  class  of  cases  where  the  license  may 

be  revoked  is  where  the  act  licensed  to  be  done  is  to 
be  done  upon  the  land  of  the  licenser,  and  if  granted  by  deed 
would  amount  to  an  easement  therein.  If  such  license  be  by 
parol,  it  may  be  revoked  as  to  any  act  thereafter  to  be  done, 
even  though  in  order  to  enjoy  it  the  licensee  may  have  incurred 
expenses  upon  the  premises  of  the  licenser.  Thus  where  A, 
by  B's  license,  laid  an  aqueduct  across  B's  land,  who  then  re- 
voked it,  and  cut  off  the  pipe  that  conducted  the  water,  the 
court,  as  a  court  of  equity,  refused  to  interfere,  because  B 
had  a  right  to  revoke  the  license  at  his  pleasure.^  And  in 
another  case,  the  licensee  not  only  had  laid  an  aqueduct,  but 
dug  a  well  to  supply  it  upon  the  land  of  the  licenser,  and  was 
without  remedy,  though  the  licenser  cut  it  off.^     In  another, 

1  Sampson  v.  Burnside,  13  N.  H.  264 ;  Liggins  v.  Inge,  7  Bing.  682  ;  Wood  v. 
Leadbitter,  13  M.  &  W.  838. 

2  Ruggles  V.  Lesure,  24  Pick.  187  ;  Prince  v.  Case,  10  Conn.  375;  Jackson  v. 
Babcock,  4  Johns.  418 ;  Emerson  v.  Fisk,  6  Greenl.  200 ;  Cowles  v.  Kidder,  4 
Fost.  (N.  H.)  364;  Coleman  v.  Foster,  37  E.  L.  &  Eq.  489;  Wolfe  v.  Frost,  4 
Sandf.  Ch.  93  ;  Wickham  v.  Hawker,  7  M.  &  W.  77 ;  Duchess  of  Norfolk  v.  Wise- 
man, cited  7  M.  &  W.  77  ;  Wallis  v.  Harrison,  4  M.  &  W.  538 ;  Harris  v.  Gilling- 
ham,  6  N.  H.  9  ;  Carleton  v.  Redington,  1  Foster  (N.  H.),  293  ;  Snowden  v.  Wilas, 
19  Ind.  13 ;  Blaisdell  v.  R.  Road,  51  N.  H.  485. 

3  Howe  V.  Batchelder,  49  N.  H.  204. 

*  Owen  V.  Field,  12  Allen,  457  ;  Selden  r.  Del.  &  Hudson  Canal  Co.,  29  N.  Y. 
639. 

6  Houston  V.  Laffee,  46  N.  H.  507 ;  Marston  v.  Gale,  24  N.  H.  176. 


CH.  XII.  §  2.]      TENANCIES    AT   SUFFERAffCE,  LICENSES,  ETC.      633 

the  licensee,  under  a  license  to  enter  upon  land,  had  expended 
money  thereon  and  incurred  expense  on  account  of  the  same, 
and  it  was  held  revocable.^ 

10  a.  The  importance  of  the  principle  involved  in  the  fore- 
going propositions  in  respect  to  the  power  of  a  licenser  to 
revoke  his  license,  even  though  the  licensee,  acting  under 
such  license,  may  have  incurred  expense  for  which  he  can 
claim  no  remuneration,  seems  to  render  a  review  of  some  of 
the  cases,  where  the  question  has  been  raised,  proper  by  way 
of  illustration.  In  one  class  of  these,  the  licensee  at  a  con- 
siderable expense  cut  a  drain  in  the  licenser's  land,  by  which 
the  water  of  a  spring  flowed  to  his  own  land,  and,  after  enjoy- 
ing it  some  years,  the  licenser  revoked  the  license  and  stopped 
it.  The  licensee  was  held  to  be  without  remedy .^  In  an- 
other, the  licenser  gave  the  licensees  permission  to  construct  a 
culvert  on  their  land,  and  thereby  divert  a  current  of  water 
on  to  his  land,  which  they  did,  at  their  own  expense,  and  it 
was  held  to  be  revocable.^  In  another,  the  license  was  to 
build  a  dam,  or  part  of  it,  on  the  licenser's  land,  for  the  pur- 
pose of  working  a  mill  belonging  to  the  licensee.*  And  in 
another,  the  license  was  to  flow  the  licenser's  land  for  raising 
a  head  of  water  to  work  licensee's  mill.^  And  in  both,  the 
licenses  were  held  revocable,  without  remedy  to  the  lessee  for 
the  expenses  incurred.  But  in  the  case  of  Smith  v.  Gould- 
ing,  cited  above,  it  was  held  that  the  owner  of  the  dam  would 
not  be  liable  in  damages,  after  the  license  had  been  revoked, 
for  keeping  the  same  where  it  was  until  he  had  a  reasonable 
time  in  which  to  remove  it.     In  another  class  of  cases  the 

1  Hetfield  v.  Central  E.  R.;  5  Dutch.  571. 

2  Cocker  v.  Cowper,  1  C.  M.  &  R.  418 ;  Hewlins  v.  Shippam,  5  B.  &  C.  221 ; 
Sampson  v.  Burnside,  13  N.  H.  264  ;  Fentiman  v.  Smith,  4  East,  107. 

»  Foot  V.  N.  H.  &  Northampton  Co.,  23  Co.  223.  See  Mason  v.  Hill,  -5  B.  & 
Ad.  1. 

*  Mumford  v.  Whitney,  15  Wend.  380 ;  Cook  v.  Stearns,  11  Mass.  533  ;  Smith 
v.  Goulding,  6  Cush.  155;  Addison  y.  Hack,  2  Gill,  221;  Cowles  v.  Kidder,  4 
Foster  (N.  H.),  364;  Stevens  v.  Stevens,  11  Met.  251;  Trammell  v.  Traramell, 
11  Rich.  474. 

5  Hazleton  v.  Putnam,  3  Chand.  (Wis.)  117 ;  Bridges  v.  Purcell,  1  Dev.  &  B. 
(Law)  492;  Thompson  v.  Gregory,  4  Johns.  81  ;  Carleton  v.  Redington,  1  Foster 
(N.  H.),  293;  Hall  v.  Chaffers,  13  Vt.  160,  157;  Woodward  v.  Seeley,  11  111.  167, 
166  ;  Clute  v.  Carr,  20  Wis.  533. 


634  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

license  has  been  to  erect  and  maintain  a  house  on  the  licen- 
ser's land,  and,  in  some  cases,  the  revocation  has  been  before 
the  building  was  completed,  in  others  after  it  had  been  erected, 
and  in  both  the  builder  was  obliged  to  remove  it  without  any 
right  to  claim  compensation  for  loss.^  A  license  to  use  a  way 
was  held  to  be  of  the  same  character,  although  the  licensee 
might  have  incurred  expense  upon  the  licenser's  land  in  con- 
structing a  causeway  for  the  purposes  of  the  way.^  So  a 
license  to  cut  trees  on  the  licenser's  land,  though  in  writing, 
may  be  revoked.-*^  On  the  other  hand,  there  is  a  class  of 
cases  where  the  courts  of  some  of  the  Slates  have  been  dis- 
posed to  hold  that  a  license,  to  the  enjoyment  of  which  it  was 
necessary  to  expend  money  upon  the  licenser's  land,  could  not 
be  revoked  without  first  reimbursing  this  expenditure,  and 
doing  what  is  equivalent  to  restoring  the  licensee  in  statu  quo.^ 
In  Massachusetts  it  is  held  that,  if  the  licenser  revokes  his 
license  to  the  prejudice  of  the  other  party,  he  may  be  liable  in 
damages.^  And  it  is  justly  remarked  by  the  Vice  Chancellor, 
in  Wolfe  v.  Frost,  that  if  those  decisions,  Taylor  v.  Waters 
(7  Taunt.  384)  and  Woodbury  v.  Parshley,  cited  below,  are 
law,  a  parol  license  executed  or  acted  upon  is  sufficient  to 
pass  an  incorporeal  hereditament,  thus  net  merely  repealing 
the  statute  of  frauds,  but  abolishing  the  rules  of  the  common 
law  that  such  an  estate  can  only  be  conveyed  by  a  deed.^ 
And  the  court,  in  Jamieson  v.  Millemann,  cited  below,  declare 
the  case  of  Taylor  v.  Waters  to  be  conclusivel}^  overruled  by 
English  and  American  cases.  The  case  of  Wood  v.  Leadbit- 
ter  was  this  :  The  owner  of  land,  on  which  was  a  stand  for  the 
spectators  at  a  horse-race,  sold  a  ticket  to  the  plaintiff  to 
enter  and  witness  the  race.  Before  the  race  was  over,  with- 
out any  misconduct  on  the  part  of  the  plaintiff,  or  tendering 

1  Jamieson  v.  Millemann,  3  Duer,  255 ;  Prince  v.  Caise,  10  Conn.  378 ;  Jack- 
son V.  Babcock,  4  Johns.  418;  Batchelder  v.  Wakefield,  8  Cush.  252;  Harris  v. 
Gillingham,  6  N.  H.  9 ;  Benedict  v.  Benedict,  5  Day,  464. 

2  Ex  parte  Coburn,  1  Cow.  568;  Foster  i\  Browning,  4  R.  I.  47;  Dexter  w. 
Hazen,  10  Johns.  246 ;  Wallis  v.  Harrison,  4  M.  &  W.  538. 

3  Tillotson  V.  Preston,  7  Johns.  285  ;  Giles  v.  Simonds,  15  Gray  441. 

4  Rhodes  v.  Otis,  33  Ala.  600 ;  Addison  v.  Hack,  2  Gill,  221 ;  Woodbury  v. 
Parshley,  7  N.  H.  237. 

6  Whitmarsh  v.  Walker,  1  Met.  316 ;  Giles  v.  Simonds,  15  Gray,  444. 
«J  Wolfe  V.  Frost,  4  Sandf.  Ch.  90. 


CH.  XII.  §  2.]      TENANCIES    AT    SUFFERANCE,  LICENSES,  ETC.      635 

him  back  the  admission  fee,  the  owner  ordered  him  to  leave 
the  premises,  and  afterwards  removed  him  ;  and  it  was  held 
that  his  ticket  was  a  mere  license  which  was  revocable.^  And 
the  same  doctrine  of  a  right  in  the  vendor  of  a  ticket,  to  re- 
voke the  license  it  gives  to  witness  an  exhibition,  was  applied  in 
case  of  a  play  at  the  theatre  and  at  a  concert.  But  in  such  a 
case,  the  purchaser  would  be  entitled  to  damages  in  an  action 
of  assumpsit  for  a  breach  of  contract.  So  where,  by  a  parol 
license,  one  had  gone  on  and  excavated  another's  land  for 
minerals,  at  great  expense,  and,  while  pursuing  the  business  of 
mining,  was  forbidden  by  the  owner,  it  was  held  that  the  lat- 
ter might  revoke  the  license,  and  the  licensee  would  be  with- 
out remedy .2  In  the  case  cited  of  Foster  v.  Browning,  Ames, 
C.  J.,  remarks,  that  "in  Maine,  New  Hampshire,  Pennsyl- 
vania, and  Ohio,  and  perhaps  in  some  other  States,  the  ex- 
ploded doctrine  of  some  of  the  earlier  English  cases  is  still 
maintained  at  law,  upon  the  equitable  grounds  of  estoppel  and 
part  performance  of  a  parol  contract,"  and  intimates  that  a 
court  with  full  equity  powers  might,  in  some  of  those  cases, 
give  relief,  where  the  same  could  not  be  had  at  common  law.^ 
It  will  be  accordingly  found  in  a  great  number  of  cases,  that 
in  Pennsylvania  the  courts  hold  that  an  executed  license, 
where  the  licensee  has  incurred  expense,  as  in  erecting  a  dam 
upon  the  licenser's  land  to  operate  a  mill  erected  on  his  own, 
and  the  like,  is  not  revocable.*  The  Pennsylvania  doctrine 
rests  upon  the  idea  of  estoppel,  whereby  equity  treats  an  exe- 
cuted license  as  giving  an  absolute  right,  because  the  parties 

1  Wood  V.  Leadbitter,  13  M.  &  W.  838.  See  also  the  same  case  for  a  criticism 
upon  Taylor  v.  Waters,  sup. ;  Coleman  v.  Foster,  87  E.  L.  &  Eq.  489.  To  the 
above  cases  may  be  added,  upon  the  general  subject  of  revoking  licenses,  Fuhr 
V.  Dean,  26  Mo.  119  ;  Ford  v.  Whitlock,  27  Vt.  268;  Hays  v.  Richardson,  1  G. 
and  Johns.  383;  Morse  v.  Copeland,  2  Gray,  302;  Williams  v.  Morris,  8  M.  &  W. 
488. 

2  Desolge  v.  Pearce,  38  Mo.  599;  McCrea  v.  Marsh,  12  Gray,  213  ;  Burton  v. 
Sclierpf,  1  Allen,  134.  See  Adams  v.  Andrews,  15  A.  &  El.  n.  s.  296.  In  the 
case  from  12  Gray,  Wood  v.  Leadbitter  is  sustained,  that  of  Taylor  v.  Waters 
denied. 

3  4  li.  I.  52,  53. 

<  Rerick  v.  Kern,  14  S.  &  R.  267  ;  Wheatley  v.  Chrisman,  24  Penn.  St.  298 ; 
Strickler  v.  Todd,  10  S.  &  R.  74 ;  Lacey  v.  Arnett,  33  Penn.  St.  169 ;  Camp- 
bell V.  McCoy,  31  Penn.  St.  263  ;  Swartz  v.  Swartz,  4  Penn.  St.  3-58. 


636  LAW  OF  REAL  PROPERTT.  [BOOK  I. 

cannot  be  restored  in  statu  quo  if  it  is  revoked.  Bat  it  is  lim- 
ited to  cases  where  something  has  been  done  under  the  license, 
and  it  is  impossible  to  restore  the  licensee  in  statu  quo.  It 
would  not  be  so  if  the  licensee  had  simply  paid  a  considera- 
tion for  the  license.^  The  Pennsylvania  doctrine  is  substan- 
tially adopted  in  Iowa  and  Indiana.  In  one  case  the  licensee 
had  built  a  wall  partly  on  the  licenser's  land.^  In  another, 
the  licensee  had  sunk  shafts  in  licenser's  land  for  mines.'^  It 
was  held  that  the  license  could  not  be  revoked  until  compen- 
sation had  been  made  for  the  expenses  incurred.  But  it  might 
be  revoked  if  no  money  had  been  expended  by  the  licensee. 
Nor  does  a  license  to  mine  in  another's  land  confer  an  exclu- 
sive right  of  property  in  the  ore  to  be  found  therein.* 

10  b.  To  pursue  this  subject  in  the  light  of  later  decisions, 
it  would  seem  that  courts  of  equity  would  restrain  the  revo- 
cation of  a  license,  although  the  same  may  be  done  at  common 
law,  where  the  revocation  would  work  a  fraud,  or  it  would 
construe  the  license  as  an  agreement  to  give  the  right,  and 
compel  specific  performance  by  deed  as  of  a  contract  in  part 
executed.^  The  language  of  Bates  Ch.  in  Jackson  v.  Phil., 
Bal.  &  W.  R.  R.,  in  Delaware,  in  1872,  is  this:  "  At  law,  a 
license  can,  under  no  circumstances,  become  irrevocable  by 
estoppel,  when  the  effect  would  be  to  create  an  interest  in 
land."  "  A  mere  license  affecting  lands  is,  at  law,  always 
revocable,  even  though  granted  for  a  valuable  consideration, 
and  although  the  licenser  may  have  expended  money  under 
it."  But,  as  he  states,  in  courts  of  equity,  "  equities  in  land, 
though  not  created  by  any  deed,  grant,  or  writing,  but  spring- 
ing out  of  the  acts  and  relations  of  the  parties,  are  largely 
enforced."  "  But  this  principle  of  equitable  estoppel  pro- 
ceeds upon  the  ground  of  preventing  fraud.  Its  effect,  when 
applied,  is  to  restrain  a  party  from  exercising  his  le(/al  right." 
And  a  case  published  in  1873,  cited  below,  may  serve  to  illus- 
trate the  present  state  of  the  law.     One  having  erected  a 

»  Huff  V.  McCauley,  53  Penn.  St.  209. 

2  Wickersham  v.  Orr,  9  Iowa,  260.  ^  Beatty  v.  Gregory,  17  Iowa,  114. 

•>  Upton  r.  Brazier,  17  Iowa,  157 ;  Snowden  v.  Wilas,  19  Ind.  14;  2  Am.  Lead. 
Cas.  682  and  cases. 

5  Veghte  V.  llaritan  Co.,  4  C.  E.  Green,  163  (1868) ;  Williamston,  &c.  R.  R.  v. 
Battle,  66  N.  C.  546(1872). 


CH.  XII.  §  2.]      TENANCIES    AT   SUFFERANCE,  LICENSES,  ETC.      637 

mill-dam,  by  permission  of  the  owners,  across  a  stream  of 
water,  with  a  view  of  providing  power  thereby  to  work  a  mill 
which  he  erected  on  his  own  land,  applied  to  an  interme- 
diate land-owner  for  permission  to  cut  a  canal  through  his 
land  for  the  purpose  of  conducting  the  water  from  the  dam 
to  his  mill,  and  obtained  a  license  so  to  do.  He  then  mort- 
gaged his  land,  but  said  nothing  of  the  mill  or  privileges,  and 
the  mortgage  was  foreclosed.  It  was  held  that  the  mortgage 
carried  the  mill  and  whatever  privileges  of  water  belonged  to 
it.  But,  as  the  license  to  cut  and  maintain  the  canal  was  by 
parol,  it  might  be  revoked  at  any  time  by  the  owner  of  the 
land,  although  the  mill  had  been  run  by  means  of  the  water 
more  than  twenty-five  years.  Hogeboom,  J.,  was  inclined  to 
adopt  the  Pennsylvania  doctrine,  and  hold  the  license  irrevo- 
cable; but  the  court  sustained  the  opposite  doctrine,  John- 
son, J.,  denying  that  it  came  within  the  principle  on  which 
equity  acts.^  In  Georgia  it  would  be  held  in  equity  an  ir- 
revocable license.^  In  Illinois,  where  the  owner  of  a  house, 
having  a  wall  adjacent  to  another's  land,  gave  him  license  to 
erect  a  Avooden  house  on  his  own  premises,  and  make  use  of 
the  wall  for  that  purpose,  and  he  did  so,  the  court  held  the 
license  was  irrevocable  both  as  to  the  licensee  and  his  grantee.^ 

11.  This  rests  upon  the  familiar  principle,  that  a  freehold 
interest  in  lands  can  only  be  created  or  conveyed  by  deed  ; 
nor,  as  before  stated,  can  an  easement  in  the  land  of  another 
be  created,  except  by  deed,  or  what  is  equivalent,  —  prescrip- 
tion .^ 

*12.  But  there  are  licenses  which  are  irrevocable,   [*401] 
though  they  relate  to   land   and  are  by  parol ;    as 
where,  for  instance,  the  license  is  directly  connected  with  the 

1  Babcock  v.  Utter,  1  Abbot,  N.  Y.  Rep.  27-60,  in  which  the  foregoing  text 
is  referred  to. 

2  Coolc  V.  Prigden,  45  Geo.  331. 

8  Russell  V.  Hubbard,  59  111.  337. 

4  Wood  V.  Leadbitter,  13  M.  &  W.  838,  impugning  the  case  of  Tayler  v.  Wa- 
ters, 7  Taunt.  374,  and  explauiing  Wood  v.  I^Ianley,  11  A.  &  E.  34  ;  Morse  v.  Cope- 
land,  2  Gray,  302;  Stevens  v.  Stevens,  11  Met.  251;  Foot  v.  New  Haven  and 
Northampton  Co.,  23  Conn.  223;  Jamieson  v.  Millemann,  3  Duer,  255  ;  Cook  v. 
Stearns,  11  Mass.  533 ;  Gale  &  Whatley,  Easements,  19 ;  Id.  45 ;  Doolittlc  v. 
Eddy,  7  Barb.  74;  Selden  v.  Del.  &  Hud.  Canal  Co.,  29  N.  Y.  639;  Clute  v.  Carr, 
20  Wis.  533. 


638  LAW   OF   REAL    PROPERTY.  [BOOK   I. 

title  to  personal  property  which  the  licensee  acquires  from 
the  licenser  at  the  time  the  license  is  given,  whereby  the 
license  is  coupled  with  an  interest.  Thus,  where  one  sells 
personal  chattels  on  his  own  land,  and,  before  a  reasonable 
time  to  remove  them,  forbids  the  purchaser  to  enter  and  take 
them,  it  was  held  to  be  a  license  which  he  could  not  revoke 
within  such  reasonable  time.^  So,  Avhere  A  cut  hay  upon  B's 
land  upon  shares,  and  stored  it  in  B's  barn  u]3on  the  premises, 
by  his  permission,  B  could  not  revoke  his  license  to  A  to 
come  and  divide  it  and  carry  off  his  share.^  And,  where  one 
gave  another  license  to  cut  trees  on  his  land,  at  an  agreed  price, 
to  be  carried  away,  the  vendor  could  not  revoke  the  license 
to  remove  such  of  them  as  had  been  cut  under  it.  But  until 
cut,  the  owner  may  revoke  the  license,  and  a  convej'ance  of 
the  land  to  a  third  party  by  deed  would  operate  as  such  a 
revocation,  as  soon  as  known  to  the  licensee,  who  would 
thereupon  become  a  trespasser  by  afterwards  cutting  the 
trees.^  So  where  the  owner  of  land  sold  it,  reserving  the 
trees  standing  and  down  upon  it,  with  a  right,  for  three  years, 
to  cut  and  carry  them  away.  It  was  held  that  all  that  he 
cuts  in  that  time  are  personal  property,  and  he  may  carry 
them  away  afterwards,  but  would  thereby  be  liable  in  tres- 
pass qu.  cl.  freg.  for  going  upon  the  land.  And  the  same 
principle  applies  if  one  man's  cattle  are  on  another  man's 
land  without  his  permission.* 

13.  The  license  may  be  irrevocable  when  executed,  though 
it  be  given  by  a  parol,  and  affects  the  land  of  the  licenser  if 
the  act  licensed  be  done  on  the  licensee's  land,  and  its  only 
effect  be  to  impair  or  destroy  an  easement  in  the  licenser's 
land,  which  that,  as  the  dominant  estate,  has  enjoyed  in  or 
out  of  the  land  of  the  licensee  as  the  servient  estate.     Thus, 


1  Nettleton  v.  Sikes,  8  Met.  34;  Wood  v.  Manley,  11  A.  &  E.  34  ;  "Wood  v. 
Leadbitter,  13  M.  &  W.  856 ;  Am.  ed.  n.;  Parsons  v.  Camp,  11  Conn.  525; 
Claflin  V.  Carpenter,  4  Met.  580,  583.  But  see  Williams  v.  Morris,  8  M.  &  W. 
488;  Giles  v.  Simonds,  15  Gray,  442  ;^  Sterling  v.  Worden,  51  N.  H.  227. 

2  White  V.  Elwell,  48  Me.  360. 

»  Drake  v.  Wells,  11  Allen,  148,  144;  Giles  v.  Simonds,  15  Gray,  441;  Cole- 
man V.  Foster,  1  H.  &  Norm.  37  and  notes;  Roffey  v.  Henderson,  17  Q.  B.  586* 
Wescott  V.  Delano,  20  Wis.  516,  517. 

*  Town  V.  Hazen,  51  N.  H.  596. 


CH.  XII.  §  2.]      TENANCIES    AT    SUFFERANCE,    LICENSES,  ETC.       639 

where  Agave  B  license  to  erect  his  house  so  near  A's 
ancient  house  *  as  to  obstruct  his  light  and  air,  and  [*402] 
B  built  accordingly,  A  could  not  revoke  the  license, 
though  he  was  thereby  deprived  of  these  easements.  But  if 
in  order  to  enjoy  the  license  it  is  necessary  to  exercise  a  right 
of  easement  by  using  the  licenser's  land,  it  is  a  revocable  one, 
as  where,  in  the  case  above  cited,  the  licensee,  in  order  to 
raise  the  pond  for  his  mill,  was  obliged  to  flow  back  the  water 
upon  the  licenser's  land.  In  the  one  case,  the  licenser  does 
an  act,  or,  what  is  the  same,  authorizes  it  to  be  done,  which 
extinguishes  what  he  had  before  enjoj^ed  in  another's  estate. 
In  the  other,  in  order  to  enjoy  the  license,  the  licensee  must 
occupy  the  land  of  the  licenser.*  ^ 

14.  Where,  under  a  license  which  has  been  revoked,  the 
licensee  before  such  revocation  has  made  improvements  upon 
the  licenser's  land  by  labor  or  money  expended  thereon, 
equity  *  will  not  allow  the  licenser  to  avail  himself  of  [*403] 
these,  without  restormg  the  licensee  to  as  good  a  situ- 


*  Note.  —  By  statute  in  Massachusetts,  a  mill-OA^er  has  a  right  to  flow  land 
of  another  under  certain  circumstances,  being  liable  to  pay  damages  therefor. 
It  was  held  that  wliere  such  land-owner,  for  a  valuable  consideration,  consented 
to  the  mill-owner's  flowing  his  land  without  further  claim  for  damages,  it  could 
not  be  revoked.  Seymour  v.  Carter,  2  Met.  520.  The  license  in  Morse  v.  Cope- 
land,  2  Gray,  302,  was  to  erect  a  dam  upon  the  licensee's  own  land,  which  re- 
stricted the  extent  of  the  easement  of  flowing  the  same,  belonging  to  the 
licenser,  and  held  irrevocable  after  it  had  been  executed.  In  Winter  v.  Brock- 
-\ve\\,  8  East,  308,  the  license  was  to  erect  a  sky-light  on  licensee's  land,  which 
obstructed  the  liglit  and  air  from  coming  to  licenser's  house ;  the  license  was 
held  irrevocable  after  the  sky-light  had  been  erected.  In  Liggins  v.  Inge,  7 
Bing.  682,  the  license  was  to  lower  the  bank  of  a  stream  in  the  licensee's  land, 
aud  erect  a  weir  thereon,  which  diverted  a  portion  of  the  water  of  the  stream 
from  the  licenser's  mill  below.  It  was  held  that  permitting  this  diversion  to  be 
made  was  in  effect  an  abandonment  of  the  natural  flow  of  the  stream ;  and  it 
having  been  done  at  the  expense  of  the  licensee  on  his  own  land,  the  license 
could  not  be  revoked,  nor  the  right  thus  abandoned  resumed. 

1  Morse  v.  Copeland,  2  Gray,  302 ;  Addison  v.  Hack,  2  Gill,  221 ;  Dyer  v. 
Sandford,  9  Met.  395 ;  Liggins  v.  Inge,  7  Bing.  682 ;  Ilazleton  v.  Putnam,  3 
Chand.  (Wis.)  124;  Winter  v.  Brockwell,  8  East,  308;  Hewlins  v.  Shippam,  5 
B.  &  C.  221  ;  .Jamieson  v.  Millemann,  3  Duer,  255  ;  Moore  v.  Rawson,  3  B.  &  C. 
332;  Foot  v.  New  Haven  &  Northampton  Co.,  23  Conn.  223;  Gale  &  Wiiatley, 
Easements,  20;  Cocker  v.  Cowper,  per  Parke,  B.,  1  C.  M.  &  R.  420;  Veghte  v. 
Raritan  Co.,  4  C.  E.  Green,  153. 


640  LAW   OF   REAL   PROPERTY.  [bOOK    L 

ation  as  he  stood  in  before  he  entered  upon  the  execution  of 
the  license.^ 

15.  And  where,  by  such  revocation,  the  structure  erected 
by  the  Heensee  on  the  Hcenser's  land  acquires  the  character 
of  personal  property,  as  in  case  of  a  house  erected  under  the 
license,  the  licensee  has  an  interest  in  the  same,  and  may 
remove  the  structure  within  a  reasonable  time.  And  to  that 
extent  the  license  would  be  irrevocable.^  But  whether  the 
licenser,  upon  revoking  the  license,  can  compel  the  licensee 
to  restore  the  premises  to  their  original  condition  at  his  ex- 
pense or  not,  depends  upon  the  circumstances  of  the  case.*  ^ 

*  Note.  —  The  subject  of  licenses  is  further  treated  of  in  Angell  on  Water- 
courses, c.  8,  and  2  Am.  Lead.  Cas.  514-538,  1st  ed. 

1  Hazleton  v.  Putnam,  3  Chand.  (Wis.)  117;  Story,  Eq.  Jur.  §  1237;  Angell, 
Watercourses,  §  318 ;  Short  v.  Taylor,  cited  2  Eq.  Cas.  Abr.  522. 

'^  Barnes  v.  Barnes,  6  Vt.  388 ;  Wood  v.  Leadbitter,'  13  M.  &  W.  856,  Am.  ed. 
n. ;  Ashmiin  v.  Williams,  8  Pick.  402.     See  Burk  i;.  Mollis,  98  Mass.  56. 

^  Prince  v.  Case,  10  Conn.  375;  Stevens  v.  Stevens,  11  Met.  251. 


CH.  XIII.  §  1.]  JOINT   ESTATES.  641 


*  CHAPTER    Xllt.  [*404] 

JOINT    ESTATES. 

Sect.  1.  Estates  in  Joint-Tenancy. 

Sect.  2.  Estates  in  Coparcenary. 

Sect.  3.  Tenancies  in  Common. 

Sect.  4.  Estates  in  Partnership. 

Sect.  5.  Joint  Mortgages. 

Sect.  6.  Estates  in  Entirety. 

Sect.  7.  Partition. 


*  SECTION"  I.  [*406] 

ESTATES   IN  JOINT-TENANCY. 

1.  Of  the  quality  of  estates. 

2.  What  constitutes  a  joint-tenancy. 

3.  Eelation  of  joint-tenants  to  each  other. 

4.  Of  what  estates  sucli  tenancy  may  be. 

5.  How  it  may  be  created. 

6.  Of  the  unities  in  joint-tenancy. 

7.  Of  survivorship. 

8-10.  By  what  terms  joint-tenancy  is  created. 

11.  Incidents  of  such  tenancy. 

12.  One  co-tenant  cannot  set  up  title  against  the  other. 

13.  How  the  co-tenants  may  sue  and  be  sued. 

14.  Nature  of  survivor's  interests. 

15.  One  cannot  charge  the  estate  as  to  the  other. 

16.  Of  actions  for  waste  by  either. 

17.  Of  sales  by  co-tenants. 

18.  One  co-tenant  may  not  devise  his  share. 

19.  Trustees  considered  as  joint-tenants. 

20.  How  equity  treats  joint-estates. 

21.  No  dower  or  curtesy  in  joint-tenancies. 

22.  How  these  are  dissolved. 

1.  After  treating  of  estates  in  respect  to  their  quantity, 
the   next  subject  in  the  order  of  the  work  proposed  is  the 

VOL.    I.  41 


64^  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

quality  of  these  estates,  or  the  manner  in  which  the  right  of 
enjoyment  may  be  exercised,  as  either  by  one  alone,  as  a  ten- 
ancy in  severalty,  or  by  several  under  the  names  of  joint- 
tenants,  coparceners,  or  tenants  in  common.^  A  tenancy  in 
severalty  exists,  as  the  term  implies,  where  one  has  the  right 
to  enjoy  an  estate  separately  by  himself.^  It  is  customary  to 
treat  of  joint-tenancy,  coparcenary,  and  tenancy  in  common, 
under  separate  heads.  But  the  first  two  apply  to  so  limited 
an  extent  to  estates  in  this  country,  and  the  three  have  so 
many  things  in  common,  that  it  is  proposed  to  discuss  them 
all  in  a  single  chapter. 

2.  A  JOINT-TENANCY  is  defined  to  be  "  when  several  per- 
sons have  any  subject  of  property  jointly  between  them  in 
equal  shares  by  purchase."  "  Each  has  the  whole  and  every 
part  with  the  benefit  of  survivorship,  unless  the  tenancy  be 
severed."  ^  In  the  quaint  language  of  the  law  they  hold,  each 
per  my  et  per  tout,  the  effect  of  which,  technically  considered, 
is,  that,  for  purposes  of  tenure  and  survivorship,  each  is  the 
holder  of  the  whole.  But  for  purposes  of  alienation,  each  has 
only  his  own  share.*  And  the  shares  of  several  joint-tenants, 
as  well  as  of  tenants  in  common,  are  always  presumed  to  be 
equal.^  If  the  grant  of  one  parcel  of  land  to  two  persons  de- 
fines the  share  and  interest  which  each  is  to  take,  it  creates  an 
estate  in  common,  and  not  a  joint-tenancy.^ 

3.  While,  moreover,  joint-tenants  constitute  but  one  person 

in  respect  to  the  estate,  as  to  the  rest  of  the  world, 
[*407]  between  *  themselves  each  is  entitled  to  his  share  of 

the  rents  and  profits  so  long  as  he  lives,  but  subject  to 
the  right  of  the  survivor  or  survivors  to  take  the  entire  estate 
upon  his  death,  to  the  exclusion  of  his  heirs  or  personal  repre- 
sentatives.'^ 

4.  There  may  be  a  joint-tenancy  whether  the  estate  be  in 

1  Prest.  Est.  22. 

2  1  Prest.  Est.  130 ;  2  Bl.  Com.  179.  The  term  entirety  as  applied  to  estates, 
it  will  be  seen,  is  used  to  describe  the  interest  of  husband  and  wife  as  joint- 
owners  of  an  estate. 

3  1  Prest.  Est.  136;   Co.  Lit.  180  b. 

*  1  Prest.  Est.  136  ;  Wms.  Real  Prop.  112;  Co.  Lit.  186  a. 

5  Shiels  V.  Stark,  14  Ga.  429. 

6  Craig  V.  Taylor,  6  B.  Mou.  457.  ^  Wms.  Real  Prop.  109 ;  Lit.  §  281. 


CH.  XIII.  §  1.]  JOINT   ESTATES.  643 

fee,  for  life,  for  years,  or  at  will,i  and  also  of  estates  in 
remainder.^  So  there  may  be  a  joint-tenancy  in  an  estate  for 
life,  though  the  reversion  or  remainder  be  in  only  one  of  the 
tenants ;  and  if  he  who  has  the  reversion  in  fee  die  first,  his 
heir  will  be  postponed  as  to  his  enjoyment  of  the  estate  until 
after  the  decease  of  the  other  joint-tenant.^ 

5.  But  a  joint-tenancy  can  only  be  created  by  purchase  or 
act  of  the  parties,  and  not  by  descent  or  act  of  the  law.  It 
must,  moreover,  be  created  by  one  and  the  same  act,  deed,  or 
devise,  and  joint  disseisors  may  be  joint-tenants.* 

6.  A  joint-tenancy  at  common  law  must  have  a  fourfold 
unity  as  it  is  called,  namely,  of  interest,  of  title,  of  time,  and 
of  possession,  —  the  interest  being  acquired  by  all,  and  by  the 
same  act  or  conveyance,  commencing  at  the  same  time,  and 
held  by  the  same  undivided  possession.^  But  under  the  law 
of  uses,  as  well  as  by  will,  the  unity  of  time  may  be  so  far 
dispensed  with  as  to  allow  two  or  more  joint-tenants  to  take 
'their  shares  at  different  times.*^ 

7.  The  great  distinctive  characteristic  of  joint-tenancies 
among  estates  of  which  there  is  a  joint-ownership  is  the  right 
of  survivorship,  by  which,  though  the  estate  is  limited  to  them 
and  their  heirs,  the  survivor  or  survivors  take  the  entire 
estate,  to  the  exclusion  of  the  heirs  or  representatives  of  the 
deceased  co-tenant."  Two  corporations,  therefore,  cannot  be 
joint-tenants.  If  they  jointly  own  land,  they  are  tenants  in 
common  of  the  same.^ 

8.  By  the  common  law,  in  England,  if  an  estate  is 

*  conveyed  to  two  or  more  persons  without  indicating  [*408] 
how  the  same  is  to  be  held,  it  will  be  understood  to 
be  in  joint-tenancy,  upon  the  feudal  idea  that  the  services 
due  to  the  lord  should  be  kept  entire,  though  equity  is  inclined 
to  regard  such  estates  as  tenancies  in  common,  especially 
where  the  parties  have  advanced  money  upon  the  estate.^ 

1  2  Bl.  Com.  179 ;  2  FHnt,  Real  Prop.  322. 

2  Co.  Lit.  183  b.  3  Lit.  §  285. 
*  2  Bl.  Com.  180 ;  Lit.  §§  277,  278;  Putney  v.  Dresser,  2  Met.  583. 

5  2  Bl.  Com.  180. 

6  Wras.  Eeal  Prop.  112  ;  2  Prest.  Abst.  67.  7  Lit.  §  280  ;  2  Bl.  Com.  183. 

8  Dewitt  V.  San  Francisco,  2  Cal.  289. 

9  2  Flint,  Ileal  Prop.  324 ;  Rigdeu  v.  Vallier,  8  Atk.  734 ;  Wms.  Real  Prop. 


614  LAW   OF   REAL   PROPERTY.  [BOOK    T. 

9.  But  the  policy  of  the  American  law  is  opposed  to  the 
notion  of  survivorship,  and  therefore  regards  such  estates  as 
tenancies  in  common.  In  many  of  the  States  the  rule  of  sur- 
vivorship, is  abolished  by  statute,  except  in  the  case  of  joint 
trustees,  while  in  others  all  estates  to  two  or  more  persons  are 
taken  to  be  tenancies  in  common,  unless  expressly  declared 
to  be  joint  tenancies  by  the  deed  or  instrument  creating  them, 
with  a  similar  exception  of  estates  to  joint-trustees.  Thus  the 
statute  of  Massachusetts  makes  conveyances  or  devises  of  es- 
tates to  several,  tenancies  in  common,  unless  expressly  declared 
to  be  joint-tenancies,  or,  what  is  equivalent,  except  in  cases  of 
trusts,  mortgages,  and  where  the  grantees  or  devisees  are  hus- 
band and  wife.^ 

10.  And  the  court  of  that  State  waive  the  question  whether 
joint  disseisors  are  tenants  in  common,^  though  they  had  pre- 
viously treated  them  as  joint-tenants,  and  held  that,  if  either 
abandons,  the  other  should  have  the  entire  estate.^  But  where 
the  devise  was  to  children,  and  the  survivor  or  sur\dvors  of 
them,  it  was  held  to  be  an  estate  in  joint-tenancy.*  In  Mary- 
land, a  similar  rule  prevails  as  in  Massachusetts,  while  in  Ohio 
and  Connecticut  the  estate  of  joint-tenancy  does  not  exist.^  * 

*  Note.  —  In  the  following  States  every  estate  granted  or  devised  to  two 
or  more  persons  in  their  own  right  is  construed  to  be  a  tenancy  in  common, 
unless  expressly  or  by  manifest  implication  declared  to  be  a  joint-tenancy : 
namely,  Massachusetts,  Gen.  Stat.  1860,  c.  89,  §  13 ;  Maine,  Rev.  Stat.  1871, 
c.  73,  §  7  ;  New  Hampshire,  Gen.  Stat.  1867,  c.  121,  §  14  ;  Vermont,  Gen.  Stat. 
1863,  c.  64,  §  2  ;  Rhode  Island,  Gen.  Stat.  1872,  c.  161,  §  1 ;  New  Jersey,  Nixon, 
Dig.  4th  ed.  1868,  p.  150  ;  New  York,  Rev.  Stat.  1863,  vol.  1,  p.  676,  vol.  3, 
p.  14,  §  44 ;  Michigan,  Comp.  Stat.  1871,  c.  147  ;  Minnesota,  Comp.  Stat.  1872, 
c.  32,  §  44 ;   Wisconsin,  Rev.  Stat.  1858,  c.  83,  §  44 ;   Illinois,  Rev.  Stat.  1874, 

109,  Rawle's  note.  It  is  said  by  Williams  that  the  principal  use  of  a  joint-ten- 
ancy now  in  England  is  for  the  purpose  of  vesting  estates  in  trustees,  who  are 
there  invariably  made  joint-tenants.  Wms.  Real  Prop.  Ill ;  Duncan  v.  Forrer, 
6  Binn.  193. 

1  Gen.  Stat.  1860,  c.  89,  §  13 ;  Webster  v.  "Vandeventer,  6  Gray,  428 ;  Apple- 
ton  V.  Boyd,  7  Mass.  131 ;  Jones  v.  Crane,  16  Gray,  308. 

2  Fowler  v.  Thayer,  4  Gush.  111. 

8  Putney  v.  Dresser,  2  Met  583  ;   Allen  v.  Holton,  20  Pick.  458. 

*  Stimpson  v.  Butterman,  5  Gush.  153. 

5  Purdy  V.  Purdy,  3  Md.  Ch.  Dec.  547  ;  Miles  v.  Fisher,  10  Ohio,  1 ;  Walker, 
Am.  Law,  292 ;  Phelps  v.  Jepson,  1  Root,  48.  For  the  statute  laws  of  the  sev- 
eral States  on  this  subject,  the  reader  is  referred  to  the  accompanying  note. 


CH.  XIII.  §  1.]  JOINT   ESTATES.  645 

*11.  Among  the  incidents  of  a  joint-tenancy  grow-  [*409] 
ing  out  of  the  identity  of  interest  and  title  of  the 
several  tenants  *  are  these  :  that  an  entry  or  re-entry   [*410] 
made  by  one  is  deemed  to  be  the  entry  of  all,  unless 
clearly  shown  to  be  adverse  towards  his  co-tenants ;  so  livery 
of  seisin  made  to  one  is  made  to  all ;  ^  and  the  occupation  by 

c.  30  ;  Delaware,  Rev.  Code,  1852,  c.  86,  §  1  ;  Arkansas,  Dig.  of  Stat.  1858,  c.  109, 
§  12;  Mississippi,  Rev.  Code,  1871,  c.  62;  Missouri,  Gen.  Stat.  1872,  c.  140; 
California,  Wood,  Dig.  1858,  p.  104,  §  1,  art.  380 ;  7  Cal.  Rep.  347 ;  Indiana, 
Rev.  Stat.  1852,  c.  23,  §  7 ;  Iowa,  Code,  1873,  Tit.  13,  §  1939  (Husband  and 
wife  take  as  tenants  in  common ;  Hoffman  v.  Stigers,  28  Iowa,  302) ;  Maryland, 
Code,  1860,  p.  350  ;  Oregon,  Gen.  Laws,  1872,  c.  6;  Kennedy's  Appeal,  60  Penn. 
St.  511,  516. 

In  Massachusetts,  Michigan,  Wisconsin,  Indiana,  Mississippi,  and  Minnesota, 
joint-tenancies  may  exist  as  to  mortgages,  in  case  of  devises  or  conveyances  in 
trust,  and  where,  from  the  tenor  of  the  instrument  creating  the  estate,  it  is  mani- 
festly intended  to  create  an  estate  in  joint-tenancy.  See  the  statutes  above 
cited.  The  same  provisions  exist  in  Vermont,  except  as  to  mortgages;  while  in 
New  Hampshire,  New  Jersey,  Maryland,  and  losva,  the  exceptions  to  the  general 
provision  above  enumerated  do  not  exist  by  statute.  In  Maine,  when  the  con- 
veyance is  by  mortgage,  or  in  trust,  to  two  or  more  persons,  with  power  to  ap- 
point a  successor  in  case  one  dies,  it  is  construed  a  joint-tenancy,  unless  the 
contrary  is  expressed.  The  only  exceptions  in  New  York,  Illinois,  Delaware, 
Missouri,  Arkansas,  and  California,  to  the  general  rule  above  stated,  arise  in 
cases  where  estates  are  vested  in  executors  or  trustees.  These  are  held  in  joint- 
tenancy.  In  Virginia  and  Kentucky,  the  doctrine  of  survivorship  is  virtually 
abolished,  as  the  share  of  each  co-tenant,  at  his  death,  descends  to  his  heirs,  or 
may  be  devised.  Estates  held  by  two  or  more  as  executors  or  trustees,  and 
estates  where  the  conveyance  expresses  the  intention  that  the  part  of  the  one 
dying  shall  go  to  the  survivor,  are  excepted.  Code,  1873,  c.  112,  §§  18,  19; 
Kentucky,  Gen.  Stat.  1873,  c.  63,  art.  1,  §  13.  The  right  of  survivorship  is 
abolished  in  Tennessee.  Code,  1858,  §  2010  ;  Georgia,  Cobb,  New  Dig.  1851, 
pp.  293,  545  ;  Code,  1873,  §  2300 ;  Texas,  Paschal's  Dig.  1866,  p.  566  ;  Florida, 
Thompson,  Dig.  1847,  p.  191,  §  20;  North  Carolina,  Battle's  Revis.  1872,  c.  42; 
Alabama,  Code,  1867,  §  1582  ;  Pennsylvania,  Purdon,  Dig.  10th  ed.  1872,  p.  815; 
Mississippi,  Nichols  v.  Denny,  37  Miss.  59.  But,  in  Pennsylvania,  tliere  is  an 
exception  in  case  of  estates  in  trustees ;  and  in  Alabama  their  courts  have  held 
that  the  statute  does  not  apply  to  trusts  and  estates  held  in  autre  droit.  Parsons  v. 
Boyd,  20  Ala.  112.    In  South  Carolina,  the  right  of  survivorship  is  not  recognized. 

1  Brev.  Dig.  435 ;  but  see  Ball  v.  Deas,  2  Strobh.  Eq.  24.  In  Rhode  Island,  the 
exception  to  the  statute  abolishing  survivorship  does  not  extend  to  devises  or 
conveyances  to  husband  and  wife,  and  only  applies  to  devises  or  conveyances 
where  the  instrument  manifestly  indicates  an  intention  on  the  part  of  the  de- 
visor or  grantor  to  create  an  estate  in  joint-tenancy.  And  in  Ohio,  joint-ten- 
ancy, with  a  right  of  survivorship,  never  existed.      Sergeant  v.  Steinberger, 

2  Ohio,  305  (1  Ohio,  423). 

1  Co.  Lit.  49  b ;  2  Cruise,  Dig.  377. 


646  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

one  co-tenant  {■&  prima  facie  an  occupation  by  all.^  But,  inas- 
much as  it  is  competent  for  them  to  sever  their  interests,  each, 
should  he  hold  a  separate  and  distinct  portion  of  their  com- 
mon estate  for  the  term  of  twenty  j^ears,  would  thereby  acquire 
an  estate  in  severalty,  unless  such  holding  was  by  mutual 
agreement.^ 

12.  Upon  the  same  principle  of  identity  of  interest,  if  one 
joint-tenant  purchases  in  an  adverse  title  to  the  joint  estate,  or 
acquires  an  older  legal  title,  it  will  enure  to  the  benefit  of  his 
co-tenants,  if  they  will  contribute  pro  rata  towards  defraying 
the  expenses  thereof.^  And  where  a  member  of  an  existing 
company  purchases  for  the  uses  of  the  company,  he  cannot 
sell  it  to  the  company  at  an  enhanced  price  without  disclosing 
the  facts ;  the  profits  made  belong  to  the  company.^  But  one 
co-tenant  may  purchase  and  become- assignee  of  a  mortgage 
upon  the  common  property,  and  hold  as  mortgagee  against 
his  co-tenant.^ 

13.  Another  consequence  is  that  a  joint-tenant  can  neither 
sue  nor  be  sued  alone  in  respect  to  their  joint  estate,  if  advan- 
tage of  the  omission  to  join  his  co-tenants  be  properly  taken.^ 

14.  The  interest  which  a  joint-tenant  has  as  survivor  is  not 
a  new  one  acquired  by  him  from  his  co-tenant,  upon  the  lat- 
ter's  death  ;  for  his  own  interest  is  not  changed  in  amount, 
but  only  his  co-tenant's  is  extinguished.'' 

15.  No  charge,  therefore,  like  a  rent,  or  a  right  of  way,  or 

a  judgment,  created  by  one  co-tenant,  can  bind  the  es- 
[*411]  tate  in  the  *  hands  of  the  survivor  unless  the  charge 

be  created  by  the  one  who  becomes  such  survivor,  or 
the  creator  of  the  charge  releases  his  estate  to  a  co-tenant, 
who,  as  releasee,  accepts,  with  that  part  of  the  estate,  the 
charge  inhering  therein  by  his  own  act.^ 

1  WiswaU  V.  Wilkins,  5  Vt.  87  ;  Small  v.  Clifford,  38  Me.  213. 

2  Taylor  v.  Cox,  2  B.  Mon.  429 ;  Drane  v.  Gregory,  3  B.  Mon.  619. 

3  Picot  V.  Page,  26  Mo.  398;  Gossam  v.  Donaldson,  18  B.  Mon.  230;  Brittin 
V.  Handy,  20  Ark.  381 ;  post,  p.  *430 ;  Brown  v.  Hogle,  30  111.  119. 

*  Dinsmore  Co.  v.  Dinsmore,  64  Penn.  St.  43. 
6  Blodgett  V.  Hildreth,  8  Allen,  188. 

6  Lit.  §  311 ;  Webster  v.  Vandeventer,  6  Gray,  428. 

7  2  Flint,  Real  Prop.  330. 

8  Lit.  §  286;  Co.  Lit.  185  b;  2  Prest.  Abst.  58 ;  Id.  65,  66 ;  Tud.  Cas.  724; 
Lord  Abergaveny's  case,  6  Rep.  78. 


CH.  XIII.  §  1.]  JOINT    ESTATES.  647 

16.  The  relation,  however,  between  joint-tenants  is  such, 
that,  if  either  wastes  the  joint  estate,  the  other  may  have  an 
action  of  waste  against  him,  by  the  statute  of  Westminster  II. 
c.  22.1  And  in  several  of  the  States  there  are  statutes  giving 
joint-tenants  actions  of  waste  in  similar  cases. ^  If  one  of  two 
joint-tenants  flow  the  joint  land,  so  as  to  appropriate  it  to 
himself,  the  other  may  have  an  action  against  him  as  for  an 
ouster.'^ 

17.  Though  thus  united  in  their  ownership,  either  tenant 
may  convey  his  share  to  a  co-tenant,  or  even  to  a  stranger,  who 
thereby  becomes  tenant  in  common  with  the  other  co-tenant. 
If  the  conveyance  be  by  one  of  two  joint-tenants  to  the  other, 
the  estate  is  turned  into  one  in  severalty.  But  if  there  be 
more  than  two,  the  purchaser  remains  joint-tenant  with  the 
others  as  to  their  original  shares,  and  tenant  in  common  as  to 
the  share  acquired  by  purchase.*  In  conveying  his 
interest  to  a  stranger,  *  a  joint-tenant,  like  a  tenant  in  [*412] 
common,  must  do  so  by  deed  of  grant  with  words  of 
inheritance,  if  it  is  intended  to  pass  an  estate  in  fee.  Whereas, 
in  conveying  to  his  co-tenant,  a  release  is  not  only  suificient, 
but  is  the  proper  form  of  making  such  conveyance  ;  nor  need 
there  be  any  words  of  inheritance  in  the  same,  since  the  one 
to  whom  the  conveyance  is  made  is  already  seised  of  the 

1  2d  Inst.  403 ;  Shiels  v.  Stark,  14  Ga.  429. 

2  In  Missouri,  each  tenant  is  liable  to  his  co-tenant  for  the  damage  done,  and 
to  treble  damages  if  the  jury  find  tliat  the  act  was  wantonly  committed.  Stat. 
1872,  c.  85,  §  46.  A  similar  provision  exists  in  Virginia,  Code,  1873,  c.  133.  la 
Massachusetts,  each  joint-tenant  will  be  liable,  without  first  giving  thirty  days' 
notice  to  his  co-tenants  in  writing,  to  pay  treble  damages  for  waste  committed 
on  the  premises.  Gen.  Stat.  1860,  c.  138,  §  7.  A  like  provision  exists  in  Maine. 
Rev.  Stat.  1871,  C  95,  §  5.  In  Rhode  Island,  if  he  commit  waste  without  the 
consent  of  his  co-tenant,  he  forfeits  double  the  amount  of  the  waste.  Rev. 
Stat.  1872,  c/220,  §  2.  In  New  York,  the  co-tenant  in  such  case  may  have  the 
judgment  for  treble  damages,  and  elect  to  recover  these,  or  have  partition  of  the 
estate,  and  have  their  amoimt  set  out  to  him  from  the  defendant's  share.  Stat. 
1863,  vol.  2,  p.  346.  In  New  Jersey  there  is  a  similar  statute,  except  that  the  dam- 
ages are  single.  Nixon,  Dig.  1868,  p.  1022.  In  California,  such  co-tenant  may  re- 
cover treble  damages  for  waste  done.  Wood,  Dig.  1858.  In  Michigan,  the 
tenant  committing  waste  is  liable  for  double  damages.  Comp.Laws,  1871,  c.  197, 
§§  3,  6.    In  Wisconsin,  the  law  is  the  same.     Rev.  Stat.  1858,  c.  143. 

3  Jones  V.  Weathersbee,  4  Strobh.  50. 

4  Lit.  §§  292,  294,  304;  2  Prest.  Abst.  61 ;  Co.  Lit.  273  b  ;  Tud.  Cas.  724. 


648  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

estate  as  a  whole,  and  it  is  only  necessary  to  extinguish  the 
right  of  his  co-tenant  in  order  to  invest  him  with  the  exclusive 
ownership  of  the  entire  estate.^  But  a  deed  of  grant  from  one 
joint-tenant  to  another  would  be  effectual  as  a  release  in  vest- 
ing the  entire  ownership  in  the  grantee.^  So,  a  mortgage  by 
a  joint-tenant  of  his  share  to  a  stranger  would  be  effectual 
against  survivorship,  and  may  amount  to  a  severance  of  the 
joint  estate.^ 

18.  But  a  devise  by  one  joint-tenant  of  his  share  will  be 
inoperative,  inasmuch  as  the  right  of  survivorship  takes  pre- 
cedence of  such  devise.  And  so  far  does  this  principle  prevail, 
that  if  such  devisor  be  himself  the  sur\'ivor,  he  must  republish 
his  will  after  the  survivorship  has  accrued,  in  order  to  give  it 
effect.4 

19.  As  a  general  proposition,  estates  given  to  two  or  more 
trustees  will  be  held  by  them  as  joint-tenants,  and  will  go  to 
the  survivor,  nor  will  the  heirs  of  any  but  the  survivor  be  en- 
titled to  hold  any  interest  in  the  joint  estate.^  And  this  will 
be  found  to  apply  in  most  of  the  States,  even  where  the  right 
of  survivorship  as  to  ordinary  joint  estates  has  been  abolished 
by  law.^  Though  it  may  be  remarked  that  conveyances  are 
often  made,  in  such  cases,  with  an  intention  to  create  a  joint- 

tenanc}'',  which  fails,  when  technically  considered,  to 
[*413]  answer  that  end.     *  Thus  deeds  and  devises  are  often 

made  to  two  or  more,  and  to  the  survivor  of  them  and 
his  heirs,  the  effect  of  which  is  to  make  them  joint-tenants 
for  life,  with  a  contingent  remainder  in  fee  to  the  one  who 
survives.''' 

20.  It  may  also  be  further  remarked  that  it  is  a  rule  in 

1  Wms.  Real  Prop.  112,  113 ;  2  Prest.  Abst.  61 ;  Hector  v.  Waugh,  17  Mo.  13. 

2  Eustace  v.  Scawen,  Cro.  Jac.  696 ;  Chester  v.  Willan,  2  Saund.  96. 

3  York  V.  Stone,  1  Salk.  158,  s.  c.  1  Eq.  Cas.  Abr.  293 ;  Simpson  v.  Ammons, 
1  Binn.  175. 

i  Duncan  v.  Forrer,  6  Binn.  193 ;  2  Prest.  Abst.  67  ;  Lit.  §  287.  In  Co.  Lit. 
185  b,  tlie  rule  of  law  is  stated  jus  accrescendi  prcefertur  idtimce  voluntati. 

5  Hill,  Trust.  303,  and  Wharton's  note  of  Am.  cases  ;  Wms.  Real  Prop.  Ill ; 
Rabe  v.  Fyler,  10  S.  &  M.  440  ;  Webster  v.  Vandevonter,  4  Gray,  428 ;  the  case 
of  an  assignment  of  a  mortgage  to  trustees. 

6  Parsons  v.  Boyd,  20  Ala.  112;  Wms.  Real  Prop.  Ill,  Rawle's  note. 

7  Vick  V.  Edwards,  3  P.  Wms.  372;  Co.  Lit.  191,  Butler's  note,  78;  Ewing  v. 
Savary,  3  Bibb,  235;  Watkins,  Conv.,  White's  ed.  208,  n. 


CH.  XIII.  §  1.]  JOINT   ESTATES.  649 

equity,  that  if  an  estate  be  conveyed  to  several  in  unequal 
shares,  in  consequence  of  their  having  contributed  unequally 
towards  the  purchase,  they  become  tenants  in  common,  and 
not  joint-tenants.^ 

21.  And  another  incidental  remark  which  has  been  previ- 
ously explained  is,  that  there  can  be  neither  dower  nor  curtesy 
of  an  estate  held  in  joint-tenancy,  the  right  of  the  survivor 
taking  precedence  of  that  of  the  husband  or  the  wife  of  the 
deceased  co-tenant.^ 

22.  There  are  various  ways  of  terminating  joint-tenancies, 
some  of  which  have  already  been  spoken  of ;  as  by  the  estate 
being  wholly  vested  in  one  by  survivorship,  or  being  changed 
into  a  tenancy  in  common,  by  alienation  of  his  share  by  one  of 
the  tenants.  So  it  might  have  been  by  a  voluntary  partition 
of  the  estate  among  the  co-tenants,  each  taking  his  part,  to 
be  held  thereafter  in  severalty  without  any  right  of  survivor- 
ship. But  there  was  no  compulsory  process  by  the  common 
law  to  effect  such  partition,  nor  was  it  supplied  until  the 
Stat.  31  Hen.  VIII.  c.  1,  and  32  Hen.  VIII.  c.  32.  The 
subject  of  partition  by  process  of  law  will  be  treated  of  in  the 
latter  part  of  this  chapter.  An  illustration  of  the  effect  of  a 
partition  is,  that  if  there  are  two  joint-tenants  for  hfe,  and  par- 
tition be  made  between  them,  the  reversioner,  instead  of 
having  to  wait  till  the  death  of  both  before  entering  upon  any 
part  of  the  estate,  may  enter  and  possess  himself  of  the  part- 
of  either  immediately  upon  his  decease,  and  will  hold  that  in 
severalty.^ 

1  Tud.  Cas.  721 ;  Burton,  Keal  Prop.  §  1524,  n. 

2  Co.  Lit.  37  b.  5  2  Flint,  Keal  Prop.  334. 


650  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

SECTION  11. 

COPARCENARY. 

1.  Estates  in  coparcenary  defined. 

2,  8.  Distinction  between  coparceners  and  joint-tenants. 

4.  Of  conveyance  by  coparceners. 

5.  Coparceners  may  devise  tiieir  estates. 

6.  When  heirs  talse  as  tenants  in  common. 

1.  Of  estates  in  coparcenary,  or,  as  commonly  called,  par- 
cenary, little  more  need  be  said  than  to  give  some  idea  of  their 
nature  and  incidents,  because  of  their  infrequency  as  subjects 
of  reference  in  this  country.  The  term  is  applied  to  estates 
of  which  two  or  more  persons  form  one  heir,  as  is  the  case  in 
England,  where,  in  the  absence  of  sons,  several  daughters 
together  form  the  heir  to  the  ancestor's  estates ;  or  where 
several  sons  take  as  one  heir  by  the  custom  of  gavelkind.^ 

2.  While  joint-tenancies  refer  to  persons,  the  idea  of  co- 
parcenary refers  to  the  estate.  The  title  to  it  is  always  by 
descent.  The  respective  shares  may  be  unequal,  as,  for  in- 
stance, one  daughter  and  two  grand-daughters,  children  of  a 
deceased  daughter,  may  take  by  the  same  act  of  descent.  As 
to  strangers,  the  tenants'  seisin  is  a  joint  one,  but,  as  between 

Jihemselves,  each  is  seised  of  his  or  her  own  share,  on  whose 
death  it  goes  to  the  heirs,  and  not  by  survivorship.^  The 
right  of  possession  of  coparceners  is  in  common,  and  the  pos- 
session of  one  is,  in  general,  the  possession  of  the  others.^ 

3.  And  the  relation  of  a  tenant  to  the  estate  may  be  such, 
that  he  may  be  a  parcener  with  himself,  as,  for  instance, 
where  one-half  of  an  estate  descends  to  him  from  the  father, 
and  one-half  from  the  mother.  If,  in  such  case,  he  die  with- 
out lineal  descendants,  the  half  of  the  estate  that  came  to  him 
from  his  father  descends  to  his  father's  heirs,  while  the  other 
descends  to  the  heirs  of  his  mother.* 

1  2  Bl.  Com.  188. 

2  2  Bl.  Com.  188 ;  Watkins,  Conv.  143,  Coventry's  note  ;  Purcell  v.  "Wilson, 
4  Gratt.  16. 

3  1  Prest.  Est.  137 ;  Manchester  v.  Doddrige,  3  Ind,  360 ;  2  Prest.  Abst.  70. 
*  Watkins,  Conv.  145,  Coventry's  note. 


CH.  XIII.  §  2.]  JOINT   ESTATES.  651 

4.  One  parcener  might  convey  his  share  to  a  third 
person,  *  who  would  become  thereby  a  tenant  in  com-  [*415] 
mon  with  the  other  parceners  as  to  such  share.     But 

to  do  this,  a  deed  of  feoffment,  or  grant  with  words  of  inher- 
itance, was  requisite  in  order  to  convey  a  fee.  Whereas,  by  a 
deed  of  release,  one  parcener  might  convey  to  his  coparcener, 
and  a  fee  might  be  created  without  words  of  inheritance,  since 
he  already  has  a  seisin  in  fee  of  the  estate  by  descent.^  One 
prcecipe  to  recover  the  estate  lay  against  them  all.^ 

5.  One  parcener  may  dispose  of  his  share  by  his  last  will, 
nor  will  a  devise  thus  made  be  affected  by  his  subsequently 
making  a  partition  of  the  estate.^  The  name  parcener  is  said 
to  have  been  derived  from  the  power  that  either  had  to  com- 
pel the  other  to  make  partition  at  common  law,^  a  power  still 
incident  to  the  estate,  and  which  will  be  treated  of  hereafter. 

6.  But  as  in  some  of  the  States  children  and  heirs  take  by 
descent  expressly  as  tenants  in  common,  and  as  such  is  con- 
structively the  effect  of  a  descent  in  most  if  not  all  the  States, 
the  distinction  of  estates  in  coparcenary  is  of  comparatively 
little  practical  importance,  and  properly  gives  place  to  the 
familiar  form  of  joint  estates  ia  universal  use,  tenancy  in 
common.* 


*  Note.  —  In  Maryland,  children  take  the  estates  of  parents  in  fee,  as  co- 
parceners.    Hoffar't;.  Dement,  5  Gill,  132. 

1  Co.  Lit.  273  b,  Rector  v.  Waugh,  17  Mo.  13 ;  Watkins,  Cony.  145,  Coven- 
try's note;  1  Prest.  Est.  138;  Gilpin  v.  Hollingsworth,  3  Md.  190. 

2  Co.  Lit.  174  a.  s  2  Prest.  Abst.  72. 
4  Lit.  §  241. 


652  LAW  OF  REAL   PROPERTY.  [BOOK  I. 


SECTION  III. 

TENANTS   IN  COMMON. 

1.  Tenancies  in  common  defined. 

2.  Nature  of  the  several  estates  of  tenants  in  common. 

3.  What  constitutes  a  tenancy  in  common. 

4.  Curtesy  and  dower  of  tenants  in  common. 
5,  6.  Of  conveyances  by  tenants  in  common. 
7-9.  Effect  of  possession  by  one  co-tenant. 

10-14.  Of  suits  by  one  co-tenant  against  another. 

15.  When  one  is  liable  for  rent  to  his  co-tenant. 
15  a.  Same  subject. 

16.  Of  the  right  to  crops  planted  on  common  land. 

17.  Of  repairs  of  the  common  estate. 

17  a.     Of  making  improvements  on  the  common  estate. 

18.  Of  joining  in  actions  relating  to  the  estate. 

1.  A  TENANCY  in  common  is  where  two  or  more  hold  pos- 
session of  lands  or  tenements  at  the  same  time  by  several  and 
distinct  titles.     The  quantities  of  their  estate  may  be  differ- 
ent, their  proportionate  shares  of  the  premises  may  be  un- 
equal, the  modes  of  acquiring  these  titles  may  be 

[*416]  unlike,  and  the  only  *  unity  between  them  be  that 
of  possession.  Thus  one  may  hold  in  fee,  and  an- 
other for  life  ;  one  may  acquire  his  title  by  purchase,  and 
another  by  descent ;  one  may  hold  a  fifth,  and  another  a 
twentieth,  and  the  like.^  And  there  may  be  a  tenancy  in 
common  among  several  owners  of  a  remainder.^ 

2.  Each  owner  in  respect  to  his  share  has  all  the  rights, 
except  that  of  sole  possession,  which  .a  tenant  in  severalty 
would  have ;  and  if  he  wishes  to  convey  his  share  to  his  co- 
tenant,  he  must  do  so  by  the  same  kind  of  deed  that  would 
be  necessary  to  convey  it  to  a  stranger.  A  mere  technical 
release  would  not,  as  in  cases  of  joint-tenancy  and  coparce- 
nary, have  that  effect.^     He  may  manage  his  part  of  the 

1  2  Bl.  Com.  191 ;  1  Prest.  Est.  139 ;  Co.  Lit.  189, 1 ;  Lit.  §  292  ;  2  Flint,  Real 
Prop.  345. 

2  Coleman  v.  Lane,  26  Ga.  515. 

8  Co.  Lit.  19.3  a,  n.  80 ;  2  Flint,  Real  Prop.  349  ;  2  Prest.  Abst.  77.  For  the 
rights  of  joint  owners  of  a  lake  for  sailing,  fishing,  and  the  like,  see  Menzies  v. 
Macdonald,  36  E.  L.  &  Eq.  20. 


CH.  XIII.  §  3.]  JOINT   ESTATES.  653 

estate  as  he  pleases,  provided  he  does  not  mjiire  his  co-tenant 
in  so  doing.^  But  if  he  build  buildings,  or  make  improve- 
ments upon  the  common  property,  he  may  not  charge  them 
to  his  co-tenant,  though,  as  will  appear  hereafter,  sometimes 
partition  of  the  estate  is  so  made  as  to  give  him  such  improve- 
ments.^ On  the  other  hand,  where  one  co-tenant  cut  timber 
upon  the  common  estate,  and  sawed  it  into  fencing  materials 
at  a  mill  upon  the  estate,  and  used  it  for  constructing  fences 
and  making  repairs  upon  the  same,  it  was  held  that  his  co- 
tenant  had  no  claim  upon  him  for  the  property  so  taken  and 
used.^ 

3.  What  would  be  necessary  in  a  deed  or  will  to  constitute 
a  tenancy  in  common,  where  several  persons  are  grantees  or 
devisees  of  an  estate,  is  often  a  question  of  nice  law,  but  it 
may  be  generally  stated  that,  in  this  country,  wherever  two 
or  more  persons  acquire  the  same  estate  by  the  same  act,  deed, 
or  devise,  and  no  indication  is  therein  made  to  the  contrary, 
they  will  hold  as  tenants  in  common.*  Thus,  where  commis- 
sioners confirmed  claims  to  the  same  land  to  two  different 
persons,  they  took  equal  shares  in  common,^  and  the  same 
would  be  the  effect  of  two  simultaneous  conveyances  to  dif- 
ferent persons.^  So  where  two  creditors  made  simultaneous 
levies  on  land,  as  they  took  at  the  same  time  with  equal  rights, 
they  were  held  to  be  tenants  in  common  in  equal  shares.'^ 
So  if  several  persons  take  by  descent.^  If  one  joint-tenant 
convey  his  share  of  tire  estate  to  a  stranger,  the  alienee  and 
the  other  tenant  become  tenants  in  common,  as  has  been 
before  stated,  and  the  same  would  be  the  effect  if  one  who  held 

1  Peabody  v.  Minot,  24  Pick.  329,  333. 

2  Thurston  v.  Dickinson,  2  Ricli.  Eq.  317 ;  post,  p.  *427. 
»  Walker  v.  Humbert,  55  Penn.  St.  408. 

*  Miller  v.  Miller,  16  Mass.  59;  Gilman  v.  Morrill,  8  Vt.  74  ;  Martin  v.  Smith, 
5  Binn.  16 ;  Partridge  v.  Colegate,  3  Har.  &  McH.  339 ;  Briscoe  v.  McGee,  2 
J.  J.  Marsh.  370;  Wiswall  v.  Wilkins,  5  Vt.  87;  Evans  v.  Brittain,  3  S.  &  R. 
135. 

5  Challefoux  v.  Ducharme,  8  Wis.  287. 

6  Young  V.  DeBruhl,  11  Rich.  L.  638.  See  Clark  v.  Brown,  3  Allen,  509 ; 
Aldrich  v.  Martin,  4  R.  I.  520,  case  of  two  mortgages. 

■J  Shore  c.  Dow,  13  Mass.  529  ;  Cutting  v.  Roekwood,  2  Pick.  443 ;  Durant  v. 
Johnson,  19  Pick.  544 ;  Sigourney  v.  Eaton,  14  Pick.  414. 
8  Johnson  v.  Harris,  5  Hayw.  N.  C.  113;  4  Kent,  Com.  367. 


654  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

in  severalty  were  to  convey  one-half  or  any  other  share  of  his 
estate  to  another,  without  designating  the  part  by  metes  and 
bounds,  that  is,  he  would  become  tenant  in  common  with  his 
alienee.^  So  if  the  owner  of  a  parcel  of  land  convey  so  many 
acres  of  it  to  one,  and  so  many  to  another,  amounting  together 
to  the  full  number  of  acres  in  the  parcel,  his  grantees  would 
take,  as  tenants  in  common,  the  shares  which  their  respective 
number  of  acres  bore  to  the  entire  parcel.^  So  where  A 
granted  one  acre  of  woodland,  lying  in  common  with  his 
other  woodland,  it  was  held  to  be  such  an  aliquot  part  of  his 
woodland  in  common  as  one  acre  would  be  to  the  whole 
woodland  owned  by  the  grantor.^  And,  upon  a  similar 
principle,  where  a  deed  of  a  given  quantity  of  land,  parcel 
of  a  larger  tract,  does  not  locate  it  by  its  description,  the  pur- 
chaser becomes  a  tenant  in  common,  pro  rata,  in  the  whole 
parcel.* 

4.  As  has  been  heretofore  stated,  the  husband  or 
[*417]  wife  of  a  *  tenant  in  common  of  an  estate  of  inherit- 
ance is  entitled  to  curtesy  or  dower  out  of  the  share 
of  such  co-tenant.^ 

5.  Although  each  tenant  in  common  has  so  general  a  power 
of  alienation  of  his  share,  and  may  convey  any  aliquot  portion 
of  his  share,  yet,  as  a  general  proposition,  he  may  not  convey 
his  share  in  any  particular  part  of  the  estate  so  held  by  metes 
and  bounds,  if  objected  to  by  his  co-tenant,  though  it  would 
be  valid  and  effectual  as  against  himself  and  all  persons  claim- 
ing under  him.  And  the  reason  is,  that  such  a  conveyance 
impairs  the  rights  of  his  co-tenaut  in  respect  to  partition. 
Instead  of  giving  him  his  share  together  in  one  parcel,  by  a 
single  partition,  it  would  require  him  to  have  several,  and  to 
take  his  share  in  as  many  distinct  parcels.  And,  by  analogy, 
the  same  rule  applies  when  the  share  of  a  tenant  in  common 

1  Lit.  §  299 ;  Adams  v.  Frothingham,  3  Mass.  352. 

2  Preston  v.  Robinson,  24  Vt.  583.     See  vol.  3,  *622. 

8  Jewett  V.  Foster,  14  Gray,  496 ;  Phillips  v.  Tudor,  10  Gray,  82 ;  Battel  v. 
Smith,  14  Gray,  497;  Gibbs  v.  Swift,  12  Gush.  393;  Small  v.  Jenkins,  16  Gray, 
158. 

*  Schenck  v.  Evoy,  24  Gal.  110;  Jackson  v.  Livingston,  7  Wend.  136;  Lick 
V.  O'Donnell,  3  Cal.  63  ;  post,  vol.  3,  p.  *622. 

5  2  Flint,  Real  Prop.  347. 


CH.  XIII.  §  3.]  JOINT   ESTATES.  655 

is  set  off  to  satisfy  an  execution  against  him.*  ^  The  grantee 
of  a  specific  portion  of  a  larger  joint  estate,  or  the  levy  of  an 
execution  on  such  portion,  conveys  no  interest  in  common  to 
the  grantee  or  creditor  in  the  general  estate.^  Thus,  where 
one  tenant  in  common  of  a  larger  lot  conveyed  sixty-four  rods 
thereof,  it  was  held  to  pass  nothing,  it  being  without  bounds, 
and  not  to  be  held  in  common  with  the  lot  generally.^  So  a 
deed  of  one  co-tenant's  share  of  the  common  estate,  reserving 
his  share  of  the  mines  in  the  same,  would  be  a  void  reserva- 
tion.* Nor  can  one  of  several  joint  owners  of  land  dedicate 
it  to  the  public.^  Nor  can  he  create  an  easement  upon  or  over 
the  common  estate.  Nor,  if  he  owns  land  adjoining  the  com- 
mon estate,  can  he  so  use  the  latter  in  connection  with  the 
former  as  to  acquire  an  easement  over  the  common  estate  in 
favor  of  his  private  estate,  though  he  might  estop  himself 
from  claiming  damages  if  the  use  is  made  by  another.^ 
Where  one  has  conveyed  a  specific  part  of  an  estate,  of 
which  he  is  tenant  in  common  with  others,  the  conveyance 
may  be  made  good  by  the  other  co-tenants  releasing  to  him 
their  interest  in  such  portion.  Or,  if  partition  be  made,  the 
portion  thus  conveyed  falls  to  him  as  a  part  of  all  his  prop- 
erty.'^   The  court  of  Michigan  hold  that  a  conveyance  by  one 

*  Note.  —  In  Ohio  and  Maryland,  a  tenant  in  common  may  convey  his  share 
in  a  particular  part  of  the  estate,  and  a  levy  may  bg  made  in  the  same  manner. 
Treon's  Lessee  v.  Emerick,  6  Ohio,  391 ;  White  v.  Sayre,  2  Ohio,  302 ;  Reinicker 
V.  Smith,  2  Har.  &  J.  421. 

1  Brown  v.  Bailey,  1  Met.  254;  Peabody  v.  Minot,  24  Pick.  329;  Bartlet  v. 
Harlow,  12  Mass.  848 ;  Baldwin  v.  Whiting,  13  Mass.  57 ;  Rising  v.  Stannard, 
17  Mass.  282  ;  Griswold  v.  Johnson,  5  Conn.  363 ;  Duncan  v.  Sylvester,  24  Me. 
482 ;  Jewett's  Lessee  v.  Stockton,  3  Yerg.  492 ;  Varnum  v.  Abbot,  12  Mass. 
474 ;  Nichols  v.  Smith,  22  Pick.  316 ;  Jeffers  v.  Radcliff,  10  N.  H.  242 ;  Stam- 
ford V.  Fullerton,  18  Me.  229 ;  Smith  v.  Knight,  20  N.  H.  9 ;  Challefoux  v.  Du- 
charme,  4  Wis.  554 ;  Great  Falls  Co.  v.  AVorster,  15  N.  H.  412 ;  Whilton  v. 
Whilton,  38  N.  H.  127 ;  McKey  v.  Welch,  22  Tex.  390 ;  Blossom  v.  Brightman, 
21  Pick.  283,  285 ;  Prim  v.  Walker,  38  Mo.  97 ;  Good  v.  Coombs,  28  Tex.  51. 

•-i  Soutter  V.  Porter,  27  Me.  405 ;  Great  Falls  Co.  v.  Worster,  15  N.  H.  412. 

8  Phillips  V.  Tudor,  10  Gray,  82 ;  post,  vol.  3,  p.  *622. 

*  Adam  v.  Briggs  Iron  Co.,  7  Cush.  361. 

5  Scott  V.  State,  1  Sneed,  629;  Holcorab  v.  Coryell,  3  Stockt.  Ch.  548;  Dorn 
V.  Dunham,  24  Tex.  376.  The  same  rule  under  the  civil  law,  1  Domat,  Pt.  1, 
B.  2,  Tit.  5,  §  2,  art.  6. 

6  Crippen  v.  Morss,  49  N.  Y.  67. 

^  Johnson  v.  Stevens,  7  Cush.  431 ;  Cox  v.  McMuUin,  14  Gratt.  84. 


656  LAW   OF   REAL   PllOPERTY.  [BOOK   L 

co-tenant  of  a  specific  part  of  the  land  held  in  common  with 
others  would  be  good  as  to  all  persons  except  his  co-tenants, 
and  only  voidable  as  to  them  where  it  works  an  injury  to 
them,  and  cite  cases  from  Virginia  and  New  Jersey  as  sus- 
taining the  same  doctrine.^  But  they  hold  unqualifiedly,  that, 
if  there  are  co-tenants  of  separate  and  distinct  parcels  of  es- 
tate, it  is  competent  for  one  of  them  to  convey  his  interest  in 
one  of  these  to  the  exclusion  of  the  others,  or  his  creditor 
might  levy  his  execution  upon  the  debtor's  interest  in  one  or 
more  of  these  as  separate  estates,^  and  refer  to  Peabody  v. 
Minot  ^  as  sustaining  the  same  doctrine. 

6.  So  distinct  is  the  interest  of  one  tenant  in  common  from 
that  of  his  co-tenant,  that,  if  they  join  in  making  a  lease,  it  is 
regarded  as  a  demise  by  each  of  his  own  part.^ 

7.  But  their  possession  being  common,  and  each  having  a 
right  to  occupy,  not  only  will  such  possession,  though  held 
by  one  alone,  be  presumed  not  to  be  adverse  to  his  co-tenant, 
but  it  is,  ordinarily,  held  to  be  for  the  latter's  benefit,  so  far 
as  preserving  his  title  thereto,  the  possession  of  one  tenant  in 
common  being  deemed  to  be  the  possession  of  all.^  And  it 
was  held  to  be  a  fraud  in  one  co-tenant  to  suffer  the  common 

property  to  be  sold  for  taxes,  and  to  purchase  it  in 
[*418]  himself.*^     Nor  can  one  *  co-tenant  sue  another  to  try 

the  title  to  tlje  lands  in  question,  unless  he  shall  have 
been  disseised  and  kept  out  of  possession  by  the  defendant ;  '^ 
and  inasmuch  as  one  has  an  equal  right  with  the  other  to  hold 
the  papers  or  documents  relating  to  the  common  estate,  the 
one  out  of  possession  of  these  cannot  maintain  any  action 
against  the  otlier  for  the  recovery  of  them.^ 

1  Campau  v.  Godfrey,  18  Mich.  39;  Robinett  v.  Preston,  2  Robin.  273;  Mc- 
Kee  V.  Barley,  11  Gratt.  340;   Holcomb  v.  Coryell,  3  Stockt.  548. 

2  Butler  V.  Roys,  25  Mich.  53,  58.  ^  24  Pick.  329. 

4  2  Prest.  Abst.  77  ;  jw^U  pl-  18- 

5  Co.  Lit.  199  b;  Colburn  v.  Mason,  25  Me.  434;  German  v.  Machin,  6 
Paige,  Ch.  288 ;  Lloyd  v.  Gordon,  2  Har.  &  McH.  254  ;  Brown  v.  Wood,  17  Mass. 
68  ;  Barnard  v.  Pope,  14  Mass.  434  ;  Catlin  v.  Kidder,  7  Vt.  12 ;  M'Clung  v.  Ross, 
6  Wheat.  116;  Allen  v.  Hall,  1  McCord,  131 ;  Thomas  v.  Hatch,  3  Sumn.  170; 
Clymer  v.  Dawkins,  3  How.  674  ;  Poage  y.  Chinn,  4  Dana,  50;  Story  v.  Saun- 
ders, 8  Humph.  663;  Thornton  v.  York  Bank,  45  Me.  158. 

6  Brown  v.  Hogle,  30  111.  119.  "^  Martin  v.  Quattlebam,  3  McCord,  205. 
8  Clowes  V.  Hawley,  12  Johns.  484. 


CH.  XIII.  §  3.]  JOINT    ESTATES.  657 

8.  But  a  tenant  in  common  ma}^  be  disseised  by  his  co-ten- 
ant's actually  ousting  or  holding  him  out  of  possession  under 
a  claim  of  an  exclusive  right  of  possession,  and  a  denial  of  the 
right  of  the  tenant,  but  this  must  be  known  expressly  or  by 
implication  to  the  tenant.^  One  tenant  in  common  may  main- 
tain a  process  for  forcible  entry  and  detainer  against  another 
co-tenant  who  has  evicted  him  from  the  premises.^  But  it  is 
difficult  to  determine  by  any  fixed  rule  what  constitutes  a 
disseisin,  especially  between  tenants  in  common.  The  pos- 
session of  one  is  the  possession  of  all,  unless  by  an  actual 
ouster  or  an  exclusive  pernancy  of  profits,  against  the  will  of 
the  others,  one  shall  manifest  an  election  to  hold  the  land  by 
wrong,  rather  than  by  a  common  title.^  And  this  would  be 
true,  so  far  as  the  exclusive  occupation  extended,  although  it 
be  only  a  part  of  the  entire  common  estate.*  But  mere  sepa- 
rate occupancy,  however  long  continued,  would  not  affect 
the  rights  of  the  other  co-tenants,  unless  intended  to  be  in 
exclusion  of  these,  with  a  view  of  thereby  gaining  an  adverse 
right.  Thus  where,  after  the  death  of  the  father,  the  several 
children  left  the  homestead  one  after  another,  except  one, 
who  continued  to  occupy  and  manage  it  from  1778  to  1822,  it 
was  held  that  such  occupancy  had  nothing  adverse  in  it,  and 
gained  no  exclusive  title  to  the  occupant.^  Among  the  acts 
which  have  been  held  to  be  evidence  of  a  disseisin  of  one  co- 
tenant  by  another,  is  the  convej'ance  of  the  entire  estate  by 
deed  to  a  third  party,  who  enters  and  occupies  the  same  un- 
der such  deed.^     So  where  one  of  two  co-tenants  devised  the 

1  Brackett  v.  Norcross,  1  Greenl.  89 ;  Doe  v.  Bird,  11  East,  49 ;  Dexter  u. 
Arnold,  3  Suran.  152;  Harpending  v.  Dutch  Church,  16  Pet.  455  ;  Willison  v. 
Watkins,  3  Pet.  52;  Gray  v.  Givens,  Riley,  Ch.  (S.  C.)  41;  Jackson  v.  Tibbits, 
9  Cow.  241 ;  M'Clung  v.  Ross,  5  Wheat.  116. 

2  Presbrey  v.  Presbrey,  13  Allen,  284. 

8  Munroe  v.  Luke,  1  Met.  570 ;  Barnard  v.  Pope,  sui[\. ;  Small  v.  Clifford,  38 
Me.  213;  Corbin  v.  Cannon,  31  Miss.  570;  Roberts  v.  Morgan,  30  Vt.  319;  For- 
ward V.  Deetz,  32  Penn.  St.  69 ;  Hoffstetter  v.  Blattner,  8  Mo.  276  ;  Meredith  v.  An- 
dres, 7  Ired.  Law,  5;  Peck  v.  Ward,  18  Penn.  St.,  506;  Abercronibie  v.  Baldwin, 
15  Ala.  763  ;  Johnson  v.  Swaine,  Busbee,  Law  (N.  C),  335  ;  Brock  v.  Eastman, 
28  Vt.  658 ;  Owen  v.  Morton,  24  Cal.  377,  379  ;    M'Clung  v.  Ross,  5  Wheat.  124. 

*  Carpentier  v.  Webster,  27  Cal.  524,  560 ;  Bennett  v.  Clemence,  6  Allen,  10. 

5  Campbell  v.  Campbell,  13  N.  H.  483. 

6  Bogardus  v.  Trinity  Church,  4  Paige,  Ch.  178;  Bigelow  v.  Jones,  10  Pick. 
160;   Weisinger  v.  Murphy,  2  Head,  674;   Thomas  y.  Pickering,  13  Me.  837; 

VOL.  I.  42 


658  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

entire  estate  by  a  will  to  wliich  the  other  was  an  attesting 
witness,  and  the  devisee  took  possession,  it  was  held  to  be  a 
disseisin  of  the  co-tenant.^  And  an  open  and  exclusive  pos- 
session may  be  so  long  continued  as  to  be  evidence  of  an  origi- 
nal ouster.  This  was  held  in  one  case,  where  such  occupation 
had  been  for  thirty-six  years  without  accounting  for  rents  or 
profits.  In  another  case,  the  holding  had  been  for  forty  years, 
while  in  another  twenty-one  years  were  held  sufficient.-  So 
the  flowing  of  the  common  land  by  one  of  the  tenants  in  com- 
mon may  be  equivalent  to  an  ouster  of  his  co-tenants.^  And 
where  the  possession  is  sole,  and  under  a  claim  adverse  to  the 
co-tenant,  the  statute  of  limitations  begins  to  run  as  to  all 
the  land  held  in  common  by  them.* 

9.  And  where,  by  agreement  of  two  tenants  in  common, 
one  occupied  a  particular  part  of  the  common  estate  in  sev- 
eralty, as  of  a  house,  for  instance,  and  the  other  entered  upon 
it  without  his  consent,  it  was  held  that  he  might  have  tres- 
pass quare  clausum  fregit  against  his  co-tenant  for  making 
such  entry.^  If  two  co-tenants  divide  their  estate,  and  each 
enters  upon  his  allotted  share  and  occupies  it  separately,  and 
to  the  exclusion  of  the  other,  for  the  period  of  statute  limita- 
tion, it  will  operate  as  a  bar  to  the  claim  of  either  uj)on  the 
other  for  the  part  so  occupied  by  the  latter.^  And  it  has 
been  held,  that,  if  one  co-tenant  enters  and  actually 
[*419]  *  ousts  the  other  tenant  in  common  from  the  prem- 
ises, the  latter  may  have  trespass  quare  clausum  fregit 
for  such  ouster.'^     Where  a  railroad  company  were  tenants  in 

Burton  v.  Murphy,  2  Tayl.  259 ;  Gill  v.  Fauntleroy,  8  B.  Mon.  177  ;  Higbee  v. 
Rice,  5  Mass.  344,  352 ;  Hinkley  v.  Green,  52  111.  230 ;  CuUen  v.  Motzer,  13  S. 
&  R.  356. 

1  Miller  v.  Miller,  60  Penn.  St.  16,  22. 

2  Doe  V.  Prosser,  Cowp.  317  ;  Jackson  v.  Whitbeck,  6  Cow.  632  ;  Frederick  v. 
Gray,  10  S.  &  R.  182;  Mehaffy  v.  Dobbs,  9  Watts,  363. 

3  Jones  V.  Weatbersbee,  4  Strobh.  50 ;  Great  Falls  Co.  v.  Worster,  15  N.  H. 
412. 

*  Hubbard  v.  Wood,  1  Sneed,  279.  See  Mehaffay  v.  Dobbs,  9  Watts,  363 ; 
Larman  v.  Huey,  13  B.  Mon.  436  ;  Black  v.  Lindsay,  Busbee,  Law  (N.  C),  467, 
where  the  holding  had  been  but  twenty  years.     Noble  v.  McFarland,  51  111.  230. 

5  Keay  v.  Goodwin,  16  Mass.  1 ;   contra,  McPherson  v.  Seguine,  3  Der.  153. 

«  Rider  v.  March,  46  Penn.  St.  380. 

7  Erwin  v.  Olmstead,  7  Cow.  229 ;  M'Gill  v.  Ash,  7  Penn.  St.  397  ;  Booth  v. 
Adams,  11  Vt.  156 ;  King  v.  PhiUips,  1  Lans.  N.  Y.  421. 


CH.  XIII.  §  3.]  JOINT   ESTATES.  659 

common  of  land  with  other  owners,  their  co-tenants  being  a 
tenant  for  life  and  a  reversioner  in  fee,  and  they  purchased  the 
life  interest  of  the  co-tenant  and  then  laid  their  railroad  across 
it,  it  was  held  that  they  had  not,  by  so  doing,  so  ousted  the 
reversioner  that,  upon  tlie  death  of  the  tenant  for  life,  he 
could  maintain  ejectment  against  the  railroad  company.  His 
only  remedy  was  under  the  statute. ^  So  if  one  co-tenant 
erect  a  building  on  the  common  land  for  his  own  special  use, 
it  is  an  act  of  ouster  for  which  another  co-tenant  may  have 
trespass,  or  he  may  remove  the  building  from  the  jDremises.^ 
The  rule,  however,  may  be  regarded  as  well-nigh  imperative 
and  universal,  that  one  tenant  in  common  may  not  have  tres- 
pass qu.  cl.  against  another.  It  can  never  be  done  unless  the 
party  charged  has  done  something  inconsistent  with  the  rights 
of  the  other  co-tenant  in  the  premises.^  So  long  as  both  re- 
tain possession,  neither  can  have  this  action  against  the  other 
for  any  act  done  upon  the  premises,  unless  it  amount  to  an 
unequivocal  eviction  from,*  or  destruction  of,  the  property 
itself,  or  some  part  of  it.^  Trespass,  however,  lies  to  recover 
mesne  profits,  where  one  tenant  has  prevailed  against  another 
in  a  real  action  to  recover  his  share  of  a  common  estate.^ 
Mesne  profits  are  only  recoverable  in  England  in  an  action  of 
trespass  qu.  cl.freg.  after  a  judgment  in  ejectment.  In  this 
country,  in  several  of  the  States,  they  form  a  part  of  the  judg- 
ment recovered  in  actions  for  the  recovery  of  the  land ;  and  in 
Vermont  and  Massachusetts  damages  may  also  be  recovered 
beyond  these  for  acts  done  by  the  tenant  while  wrongfully  in 
possession."     But  mesne  profits  may  not  be  recovered  beyond 

1  Austin  V.  Rutland,  &c,  R.  R.,  45  Vt.  215. 

2  Bennett  v.  Clemence,  6  Allen,  18;  Stedman  v.  Smith,  8  E.  &  Black.  1. 

8  Jones  V.  Chiles,  8  Dana,  163  ;  McPherson  v.  Seguine,  3  Dev.  153  ;  Lawton 
V.  Adams,  29  Ga.  273. 

4  Filbert  v.  HofE,  42  Penn.  St.  97. 

6  Bennet  v.  Bullock,  35  Penn.  St.  364  ;  Jewett  v.  Whitney,  43  Me.  242  ;  Mad- 
dox  V.  Goddard,  15  Me.  218,  the  two  last  are  cases  of  destroying  mills.  Sillo- 
way  V.  Brown,  12  Ahen,  37  ;  Co.  Lit.  200 ;  Stedman  v.  Smith,  8  E.  &  Black.  1  ; 
Erwin  v.  Olmsted,  7  Cow.  229. 

6  Bennet  v.  BuUock,  35  Penn.  St.  367  ;  Goodtitle  v.  Tombs,  3  Wils.  118.  See 
Marsh  v.  Hammond,  103  Mass.  150,  for  the  rule  of  admeasuring  the  damages 
recoverable  as  mesne  profits.  Sears  v.  Sellew,  28  Iowa,  506,  507;  Lane  v. 
Harold,  72  Penn.  St.  267. 

7  Lippett  V.  Kelley,  46  Vt.  524,  525;  Mass.  Gen.  Stat.  c.  134,  §  18. 


660,  LAW   OF   EEAL    PROPERTF.  [bOOK   I. 

six  years  or  the  limitation  of  an  action  of  trespass.^  Tres- 
pass or  ejectment,  at  his  election,  lies  in  favor  of  one  co-ten- 
ant against  another  who  has  actually  expelled  or  ousted  him 
from  the  premises.  But  not  for  merely  taking  the  crops 
raised  upon  the  common  land.^  Nor  for  cutting  trees  upon 
the  common  estate.  Nor,  generall}^  for  an  entry  upon  and 
enjoyment  of  the  common  property.^ 

10.  Where  a  tenant,  holding  by  a  deed  to  him  as  a  tenant 
in  common,  ousted  his  co-tenant,  who  brought  ejectment  for 
such  ouster,  it  was  held  that  the  tenant  could  not  set  up  in 
defence  an  adverse  title  in  a  stranger.* 

11.  If  one  co-tenant  misuse  or  destroy  the  common  prop- 
erty, his  co-tenant  may  have  an  action  against  him  for  such 
misfeasance.  But  to  render  him  liable  as  a  tort  feasor,  he  must 
do  something  more  than  exercise  mere  acts  of  ownership  over 
it,  or  claim  it  as  his  own.^  Thus,  where  one  co-tenant  of  a 
mill,  while  in  the  sole  occupation  of  it,  suffered  it  to  be  de- 
stroyed by  his  negligence,  it  was  held  that  he  was  liable  to 
the  other  co-tenants  for  such  destruction.^  Such  is  the  case 
where  one  co-tenant  of  a  mill  erected  a  dam  below  the  same 
on  his  own  private  land,  and  flowed  back  upon  the  common 
mill  to  its  injury,"  or  authorized  another  to  do  this,  or  to  di- 
vert the  waters  of  the  stream  from  the  common  mill.^  And 
where  one  co-tenant  of  a  well  attempted  to  go  down  into  it 
to  examine  if  it  was  clean,  and  the  other  prevented  him,  the 
latter  had  a  right  of  action  for  such  obstruction.^ 

12.  One  tenant  in  common  may  have  an  action  of  waste 

1  Hill  V.  Meyers,  46  Penn.  St.  15. 

2  Murray  v.  Hall,  7  C.  B.  441,  454 ;  Silloway  v.  Brown,  1-2  Allen,  37.  And 
in  an  action  of  ejectment  the  plaintiff  may  recover  damages  and  mesne  profits, 
while  the  defendant  may  recover  for  his  betterments  in  such  action.  Backus  v. 
Ciiapman,  111  Mass.  388. 

3  Hastings  i'.  Hastings,  110  Mass.  285. 

4  Braintree  ;;.  Battles,  6  Vt.  395. 

5  Martin  v.  Knowlys,  8  T.  R.  146 ;  Wilbraham  v.  Snow,  2  Saund.  47,  n.  f,  g; 
Farrw.  Smith,  9  Wend.  338;  Co.  Lit.  200;  Hyde  v.  Stone,  9  Cow.  230;  Fight- 
master  V.  Beasley,  7  J.  J.  Marsh.  410  ;  Gilbert  v.  Dickerson,  7  "Wend.  449  ;  Tubbs 
V.  Richardson,  6  Vt.  442 ;  Harman  v.  Gartman,  Harper,  430. 

6  Chesley  v.  Thompson,  3  N.  H.  9. 

T  Odiorne  v.  Lyford,  9  N.  H.  502 ;  Hutchinson  v.  Chase,  39  Me.  508 ;  Pills- 
bury  V.  Moore,  44  Me.  154. 

8  Hines  v.  Robinson,  57  Me.  328.  «  Newton  v.  Newton,  17  Pick.  201. 


CH.  XLU.  §  3.]  JOINT    ESTATES.  6G1 

against  his  co-tenant,  for  waste  done  on  the  premises,  under 
the  statute  of  Westminster  II.  c.  22,  and  by  statute,  or  at  the 
common  law,  in  tlie  several  States.^  And  so  held  in  New 
York,  if,  hj  the  act  complained  of,  the  inheritance  is  perma- 
nently injured.^  And  if  one  co-tenant,  while  in  possession  of 
the  whole  estate  by  consent  of  the  others,  threaten  to  commit 
wilful  waste,  which  would  work  an  irremediable  mischief, 
chancery  will  interfere  to  enjoin  him.^ 

13.  If  one  tenant  cut  timber  growing  upon  the  common 
land,  and  sell  the  same  and  convert  it  into  money,  the  co-ten- 
ants may  recover  of  him  their  respective  shares  of  the  proceeds 
of  such  sale.* 

14.  So  in  some  cases,  one  tenant  in  common  may  recover 
from  his  co-tenant  a  share, of  the  rents  and  profits  of 

the  common  *  estate.  But  in  order  to  charge  a  co-  [*420] 
tenant  for  such  rents,  he  must  either  have  been  made 
the  bailiff  of  the  other  tenant,  and  then  he  would  be  liable  at 
common  law,  or  he  must  have  received  more  than  his  share  of 
the  rents  and  profits  of  the  estate,  in  which  case  he  is  liable 
under  the  statute  4  Anne,  c.  16.^  And  this  seems  to  be  the 
law  generally  in  the  United  States.^  The  same  rule  would 
apply  though  the  tenant  who  occupies  the  wdiole  premises 
were  himself  the  lessee  of  one  of  the  tenants  in  common,  if 
he  had  not  attorned  to  the  other  co-tenants.''  If  one  tenant 
in  common  sell  hay,  or  grass  growing  upon  the  common  estate, 

1  Co.  Lit.  200  b  ;  4  Kent,  Com.  369,  n. ;  Matts  v.  Hawkins,  5  Taunt.  20.  In 
Missouri,  Virginia,  Maine,  Massacliusetts,  Rhode  Island,  New  Jersey,  Micliigan, 
Wisconsin,  and  California,  the  law  is  tiie  sama  as  to  waste  by  a  tenant  in  com- 
mon as  by  a  joint-tenant,  for  which  see  the  note  at  the  end  of  this  chapter. 
Anders  v.  Meredith,  4  Uev.  &  B.  199 ;  Shiels  v.  Stark,  14  Geo.  429. 

2  Elwell  i;.  Burnside,  44  Barb.  454. 

3  Twort  i;.  Twort,  16  Ves.  128,  132. 

4  Miller  v.  Miller,  7  Pick.  133. 

5  Co.  Lit.  199  a,  and  Butler's  note,  83 ;  Peck  v.  Carpenter,  7  Gray,  283  ;  Pico 
V.  Columbet,  12  Cal.  414 ;  the  stat.  of  Anne  is  not  in  force  there.  Israel  v. 
Israel,  30  Md.  126. 

6  Jones  V.  Harraden,  9  Mass.  544  ;  Brigham  v.  Eveleth,  9  Mass.  538 ;  Sargent 
V.  Parsons,  12  Mass.  149;  Shiels  v.  Stark,  14  Geo.  429;  Huff  v.  M'Donald,  22 
Geo.  131;  Shepard  v.  Richards,  2  Gray,  424;  Gowen  v.  Shaw,  40  Me.  56; 
Dickinson  v.  Williams,  11  Cush.  258  ;  Munroe  v.  Luke,  1  Met.  459,  463 ;  Izard  v. 
Bodine,  3  Stockt.  403  ;  Webster  v.  Calef,  47  N.  H.  289. 

1  Badger  v.  Holmes,  6  Gray,  118. 


662  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

he  raa^'  recover  therefor,  although  his  co-tenant  forbids  the 
purchaser  to  pay  him.  It  is  a  mode  of  occupying  the  estate 
which  he  may  exercise  if  he  do  not  prevent  his  co-tenant  from 
occupying  with  him.^ 

15.  But  to  render  one  co-tenant  liable  to  another  for  rent, 
or  for  use  and  occupation,  there  must  be  something  more  than 
an  occupancy  of  the  estate  by  one  and  a  forbearance  to  occupy 
by  the  other.  The  tenant  who  merely  occupies  the  estate 
does  no  more  than  he  has  a  right  to  do  on  his  own  account.^ 

15  a.  The  court  of  Vermont  consider  this  subject  quite  at 
length,  and  point  out  the  rules  of  the  common  law,  and  in  what 
respect  that  of  Vermont  differs.  By  the  common  law,  if  one 
co-tenant  occupied  the  entii'e  estate  and  took  the  profits,  he 
would  not  be  liable  to  account  therefor  to  his  co-tenant.  By 
the  statute  of  Anne,  c.  16,  account  lies  by  one  co-tenant 
against  another  '■'•receiving  more  than  comes  to  his  just  share 
and  proportion."  It  was  held  in  the  case  cited  below  ^  that 
the  statute  relates  only  to  cases  where  one  co-tenant  receives 
money  or  something  else,  where  another  person  gives  or  pays 
it,  which  the  co-tenants  are  entitled  to  simply  by  reason  of 
their  being  tenants  in  common,  and  of  which  one  receives  and 
keeps  more  than  his  just  share,  accordmg  to  the  jDroportion 
of  his  interest  as  such  tenant.  This  includes  cases  of  leasing 
land  at  a  rent,  but  it  does  not  include  occupation  merely 
without  ousting  the  co-tenant,  where  no  agreement  to  pay 
has  been  made.  If  one  merely  takes  the  grass  growing  and 
sells  it  or  uses  it,  he  is  not  liable  to  the  other  tenant  under 
the  statute.  "  He  is  to  account  when  he  receives,  not  takes^ 
more  than  comes  to  his  just  share,"  citing  the  case  below.* 

1  Brown  v.  Wellington,  106  Mass.  318. 

2  Sargent  v.  Parsons,  12  Mass.  149;  Calhoun  v.  Curtis,  4  Met.  413;  Keisel  v. 
Earnest,  21  Penn.  St.  90  ;  Kline  v.  Jacobs,  68  Penn.  St.  57  ;  Israel  v.  Israel,  30 
Md.  120 ;  Scott  v.  Guernsey,  60  Barb.  163 ;  Brown  v.  Moore,  2  N.  Bruns.  42 ; 
Crow  V.  Mark,  52  111.332;  Lyles  v.  Lyles,  1  Hill,  Cli.  (S.  C.)  85;  Volentine  v. 
Johnson,  Id.  49.  But  in  these  and  the  following  cases  it  would  seem,  that  in 
South  Carolina,  in  equity,  if  one  tenant  occupies  and  cultivates  and  derives 
profit  from  more  than  his  share  of  the  estate,  he  may  be  held  accountable  for 
such  net  excess  of  profits.  Holt  v.  Robertson,  McMullan,  Ch.  475  ;  Hancock  v. 
Day,  Id.  298 ;  Thompson  v.  Bostick,  Id.  75.  But  these  cases  are  disapproved 
of  by  Field,  J.,  in  Pico  v.  Columbet,  12  Cal.  414. 

3  Henderson  v.  Eason,  17  Ad.  &  El.  x.  8.  701. 

4  McMahon  v.  Burchell,  2  Phillips,  134. 


CH.  XIII.  §  3.]  JOINT    ESTATES.  663 

But  in  Vermont,  where  one  of  several  co-tenants  of  land  con- 
verted it  into  a  race-course,  out  of  which  he  made  a  profit, 
and  to  prepare  it  cut  down  and  used  .  trees  growing  upon  it, 
it  was  lield  he  was  liable  to  account  both  for  the  timber  and 
the  profits  of  the  race- course.^ 

16.  In  Massachusetts,  however,  it  was  held  that  where  one 
co-tenant  was  suffered  to  occupy  the  common  property  and  to 
plant  and  raise  a  crop  thereon  without  objection  by  the  other 
tenant,  the  crop  when  severed  became  his  individual  property, 
and  that  ii  the  other  took  it  when  gathered,  and  carried  it 
away,  or  any  part  of  it,  he  was  thereby  a  trespasser.^  But  had 
the  estate  been  divided  between  them  before  the  crops  were 
gathered,  these  would  pass  to  the  one  to  whose  share  the  land 
on  which  they  were  growing  was  assigned,  nor  would  the  doc- 
trine of  emblements  apply  in  such  case  in  favor  of  the  one 
who  planted  them,  since  a  liability  to  have  partition  made  is 
one  of  the  incidents  of  such  estates.^  Where  a  claim  does 
arise  in  favor  of  one  tenant  in  common  against  another  for 
occupying  the  common  land,  it  is  a  personal  one,  and  does  not 
pass  with  the  estate  if  such  claimant  grants  his  estate  to 
another.* 

*  17.  The  law,  independent  of  statute,  as  to  the  [*421] 
making  of  improvements  or  repairs  upon  common 
property,  if  either  co-tenant  is  unwilling  to  join  in  the  same, 
seems  to  be  this :  One  tenant  in  common  cannot  go  on  and 
make  improvements,  erect  buildings,  and  the  like,  on  the  com- 
mon property,  and  make  his  co-tenant  liable  for  any  part  of 
the  same,  nor  has  he  a  right  to  hold  and  use  these  to  the  ex- 
clusion of  his  co-tenants.^  If  the  property  is  not  susceptible 
of  convenient  partition,  like  a  mill  or  a  house,  and  requires 
repairs  in  order  to  its  preservation,  either  tenant  might  have 
a  writ  at  common  law,  de  reparatione  faeienda,  to  compel  his 
co-tenant  to  join  in  making  such  repairs.^     But  now  it  seems 

1  Hayden  v.  Merrill,  44  Vt.  336. 

2  Calhoun  v.  Curtis,  4  Met.  413.  8  Ibid. 

*  Hannan  v.  Osborn,  4  Paige,  Ch.  336. 

5  Crest  V.  Jack,  3  Watts,  239 ;  Taylor  v.  Baldwin,  10  Barb.  582  ;  Stevens  v. 
Thompson,  17  N.  H  109  ;  Calvert  v.  Aldrich,  99  Mass.  78  ;  Converse  v.  Ferre,  11 
Mass.  32.5. 

6  Co.  Lit.  200  b;  Fitzh.  N.  B.  295  ;  Doane  v.  Badger,  12  Mass.  65;  Coffin  v. 
Heath,  6  Met.  79. 


6G4  LAW  OF  REAL  PROrERTY,  [bOOK  L 

that  such  tenant  may  have  a  remedy  by  an  action  on  the  case 
against  his  co-tenant  for  refusing,  if  he  shall  have  himself 
incurred  the  expense,  after  having  first  notified  his  co-tenant 
of  such  repairs  being  necessary,  and  requested  him  to  join  in 
making  them.^  The  writ  de  reparatione  facienda  is  super- 
seded, as  to  mills,  by  statute  provisions  upon  the  subject  in 
Massachusetts.^ 

17  a.  By  the  later  decisions,  however,  the  law  upon  these 
subjects  seems  to  have  been  somewhat  modified  from  what  is 
above  laid  down  in  respect  to  the  right  which  one  tenant  in 
common  has  to  make  improvements  and  repairs  upon  the  com- 
mon estate,  and  charge  a  part  of  it  to  his  co-tenant.  The  court 
in  Calvert  v.  Aldrich  ^  review  the  cases,  especially  Doane  v. 
Badger,  and,  regarding  the  writ  de  reparatione  facienda  as 
obsolete,  they  conclude  that,  "  between  tenants  in  common, 
partition  is  the  natural  and  usually  the  adequate  remedy  in 
every  case  of  controversy,"  and  that,  independent  of  any 
express  agreement,  neither  in  England  nor  this  country  "  an 
action  at  law  of  any  kind  has  been  sustained  either  for  con- 
tribution or  damages,  after  one  has  made  needful  repairs  in 
which  the  other  refused  to  join,"  and  approve  of  the  law  as 
laid  down  in  Converse  v.  Ferre,  sup.  This,  however,  is 
directly  opposed  to  the  dicta  of  Wilde,  J.,  in  Coffin  v.  Heath.* 
In  New  York  it  has  been  held,  that,  if  a  tenant  in  common  of 
a  reversion  erect  buildings  on  the  premises,  he  has  no  claim 
in  any  form  on  account  of  the  same  against  his  co-tenant.^ 
In  Maryland  the  court  disallowed  expenses  incurred  by  one 
co-tenant  for  improvements  made,  which  "  were  not  incurred 
for  the  preservation  of  the  property."  ^  In  Pennsylvania, 
where  equitable  remedies  are  sought  through  the  forms  of  the 
common  law,  one  tenant  may  recover  of  his  co-tenant  for 
expenditures  which  were  necessary  to  the  enjoyment  of  the 
pi-operty;  he  cannot  for  improvements  made  by  him  upon  the 

1  Doane  v.  Badger,  12  Mass.  05,  which  was  a  case  of  a  well  and  pump  owned 
in  common  which  had  become  out  of  repair.  Mumford  v.  Brown,  G  Cow.  475 ; 
Stevens  v.  Thompson,  sup. 

2  Gen.  Stat.  1860,  c.  149,  §  53 ;  Carver  v.  Miller,  4  Mass.  559. 

3  99  Mass.  74,  78.  4  G  Met.  79. 

5  Scott  V.  Guernsey,  48  New  York,  106,  124. 

6  Israel  v.  Israel,  30  Md.  128. 


CH.  XIII.  §  3.]  JOINT   ESTATES.  665 

same.^  But  there  seems  to  be  a  remedy  in  equity  for  one 
co-tenant  against  another  to  compel  a  contribution  towards 
the  repairs  of  the  common  property  when  the  same  are  neces- 
sary.2 

18.  From  the  nature  of  tenancies  in  common,  a  different 
rule  applies  as  to  the  joinder  of  the  tenants  in  actions  for  the 
recovery  of  the  freehold,  and  for  injuries  affecting  their  pos- 
session. As  each  has  a  separate  and  distinct  freehold,  if  they 
have  been  disseised  and  seek  to  recover  the  estate,  they  must 
bring  separate  actions,  and  may  not  join.*^  So  in  covenant 
broken  upon  covenants  of  warranty  made  to  tenants  in  com- 
mon, they  must  sue  separately,  and  not  jointly.^  But  tenants 
in  common  of  a  mortgage  may  sue  upon  it  jointly  or  severally, 
if  it  secure  separate  and  individual  debts.^  And  if  one  tenant 
in  common  recover  judgment  for  possession,  in  an  action  for 
the  whole  land,  he  can  only  recover  damages  pro  rata  accord- 
ing to  his  actual  interest  in  the  estate.^  But  as  they  have  one 
possession,  they  must  join  in  actions  for  injuries  to  this,  as 
trespass  quare  dausum  f regit,  nuisance,  and  the  like.'^  And  if 
they  make  a  joint  demise  of  their  common  estate,  reserving 
rent,  the  action  to  recover  it  must  be  joint.^  For  the  reasons 
above  stated,  if  one  of  several  tenants  in  common  bring  an 
action  for  the  recovery  of  land  of  which  he  has  been  disseised, 
and  claim  the  entire  estate  instead  of  his  proper  undi- 
vided share,  he  will  not  *  be  nonsuited,  but  will  have  [*422] 
judgment  for  such  share,  in  common,  as  he  proves 

i  Dech's  Appeal,  57  Penn.  St.  472. 
•    2  Coffin  V.  Heath,  6  Met.  80 ;  Story,  1  Eq.  §  1236 ;  Cheesebro  v.  Green,  10  Conn. 
318  ;  post,  2  vol.  79,  pi.  49. 

s  Lit.  §  311 ;  Co.  Lit.  200  a ;  Rehoboth  v.  Hunt,  1  Pick.  224  ;  Brisco  v.  Mc- 
Gee,  2  J.  J.  Marsh.  370;  Allen  v.  Gibson,  4  Rand.  468;  Johnson,;;.  Harris,  5 
Hayw.  113 ;  Hines  v.  Frantham,  27  Ala.  359 ;  Hughes  v.  HoUitlay,  3  Greene 
(Iowa),  30 ;  Young  v.  Adams,  14  B.  Mon.  127.  But  in  Connecticut  they  may 
sue  jointly  or  severally  in  such  case.     Hillhouse  v.  Mix,  1  Root,  246. 

4  Lamb  v.  Danforth,  59  Me.  324.  5  Brown  v.  Bates,  55  Me.  522. 

6  Muller  I'.  Boggs,  25  Cal.  187. 

7  Austin  V.  Hall,  13  Johns.  286;  Decker  v.  Livingston,  15  .Johns.  479;  Gil- 
more  V.  Wilbur,  12  Pick.  120;  Merrill  v.  Berkshire,  11  Pick.  269;  Low  v.  Mum- 
ford,  14  Johns.  426 ;  Doe  v.  Botts,  4  Bibb,  420 ;  Winters  v.  McGhee,  3  Sneed, 
128  ;  Parke  v.  Kilham,  8  Cal.  77,  case  for  diverting  water  ;  Dupuy  v.  Strong,  37 
N.  Y.  372 ;  Phillips  v.  Sherman,  61  Me.  548,  case  of  flowing  lands. 

8  Lit.  §  316 ;  Decker  v.  Livingston,  15  Johns.  479 ;  Wall  v.  Hinds,  4  Gray, 
256,  258;  Wilkinson  v.  Hall,  1  Bing.  N.  C.  713;  Co.  Lit.  198  b;  ante,  p.  *417. 


666  LAW   OF    REAL   PROPERTY.  [bOOK   I. 

himself  to  be  entitled  to.^  And  in  Vermont,  one  of  two  joint- 
tenants  may  recover  the  entire  estate  in  an  action  of  ejectment 
against  one  who  has  no  title.^  So  one  tenant  in  common  may 
have  trespass  qu.  cl.  against  a  stranger  for  entering  upon  and 
damaging  the  common  property,  and  recover  both  his  own 
and  his  co-tenant's  damage  in  such  action.^ 


SECTION    IV. 

ESTATES   EST    PARTNERSHIP. 

1.     What  constitutes  estates  in  partnership. 
2,  3.     How  far  real  is  treated  as  personal  estate,  as  to  survivorship. 
4.     When  partnership  has  the  incidents  of  individual  property. 

1.  There  are  other  joint  estates  proper  to  be  treated  of  here, 
though  not  coming  in  all  respects  under  any  one  of  the  fore- 
going classes,  but  rather  partaking  of  the  nature  both  of  joint- 
tenancies  and  tenancies  in  common.  The  first  of  these  is  an 
ESTATE  IN  PARTNERSHIP.  This  is  where  real  estate  is  pur- 
chased and  held  by  two  or  more  partners,  out  of  partnership 
funds  for  partnership  purposes.  But  engaging  in  a  single 
transdction  by  several  persons  does  not  bring  them  so  far  into 
the  category  of  partners  as  to  take  away  the  common-law 
jurisdiction  of  their  affairs.^  Independent  of  the  rights  of 
creditors,  such  estate  will  be  held  by  the  owners  as  tenants  in 
common,  with  all  the  incidents  of  such  estates.^    Thus,  where 

1  M'Fadden  v.  Haley,  2  Bay,  457  ;  Perry  v.  Walker,  Id.  461  ;  Watson  v.  Hill, 
1  McCord,-161  ;  Dewey  v.  Brown,  2  Pick.  387  ;  Somes  v.  Skinner,  3  Pick.  52. 
For  the  effect  of  one  of  several  co-tenants  paying  off  a  charge  or  purchasing  in 
an  outstanding  title  affecting  the  common  estate,  see  post,  p.  *430.  In  Illinois, 
demandant  cannot  recover  a  different  estate  from  that  sued  for.  He  cannot  re- 
cover a  share  where  he  sues  for  an  entire  estate.  Winstanley  v.  Meacham,  58  111. 
98,  99. 

2  Robinson  v.  Johnson,  36  Vt.  74;  Chandler  v.  Spear,  22  Vt.  388. 

3  Bigelow  V.  Rising,  42  Vt.  678. 
*  Harly  v.  Walton,  63  111.  260. 

5  Goodwin  v.  Richardson,  11  Mass.  469  ;  Deloney  v.  Hutcheson,  2  Rand.  183; 
Dyer  v.  Clark,  5  Met.  581  ;  Cary,  Part.  26 ;  Gow,  Part.  48 ;  Lane  v.  Tyler,  49 
Me.  252  ;  Howard  v.  Priest,  5  Met.  582. 


CH.  XIII.  §  4.]  JOINT  ESTATES.  667 

one  of  two  partners  leased  the  land  of  the  company  under  seal, 
it  only  operated  upon  his  share,  since  one  partner  cannot  con- 
vey another's  interest  in  their  real  estate,  unless  specially 
authorized.  And  if  several  join  in  a  lease,  each  lets  his  own 
share  only,  as  by  a  distinct  demise,  though  it  may  enure  to  the 
benefit  of  the  firm.^  One  reason  for  this  would  often  be  the 
inequality  of  ownership  or  interest  among  the  partners  ;  and 
another  is,  that,  as  partnership  property,  it  partakes  of  the 
character  of  stock  in  trade,  held  subject  to  the  hazard  of  profit 
or  loss,  to  which  the  principle  of  jus  accrescendi  does  not 
apply .2  These  general  principles  have  been  applied  in  the 
American  courts  in  a  great  variety  of  cases.  Thus,  real 
estate  thus  purchased  is  subject  to  the  debts  of  the  partner- 
ship, in  preference  to  that  of  a  private  creditor  of  either  part- 
ner.^ Nor  does  it  make  any  difference  that  the  title  is  taken 
in  the  name  of  one  partner.  A  trust  results  in  favor  of  the 
partnership,  as  where  the  conveyance  was  to  "  S.  L.  &  Co.," 
S.  L.  took  the  legal  estate  clothed  with  a  trust  for  the  com- 
pany.* But  if  a  partner  purchase  lands  with  partnership  funds, 
and  take  the  deed  to  himself,  he  may  convey  it  to  one  igno- 
rant of  the  source  of  his  title,  and  if  for  a  valuable  considera- 
tion, his  grantee  will  hold  it  against  the  creditors  of  the 
company  as  well  as  the  copartners.  And  an  obligatory  prom- 
ise to  marry  the  grantor  in  such  case  would  be  deemed  a 
valuable  consideration  if  the  marriage  was  prevented  by  the 
death  of  the  grantor.^  But  though  the  legal  title,  where  the 
conveyance  is  to  the  several  partners,  is  in  them  as  tenants 
in  common,  yet  as  to  the  beneficial  interest  it  is  held  in  trust, 
each  holding  his  share  in  trust  for  the  company  until  its  ac- 
counts are  settled,  and  the  partnership  debts  are  paid.^  This 
is  accomplished  in  equity  by  regarding  such  real  estate  as 

1  Dillon  V.  Brown,  11  Gray,  180;  Peck  v.  Fisher,  7  Cush.  386;  Moderwell  v. 
MuUison,  21  Penn.  St.  257. 

2  Lake  v.  Craddock,  3  P.  Wms.  158  ;  Co.  Lit.  182  a ;  Tud.  Cas.  721. 

3  Piatt  V.  Oliver,  3  McLean,  27  ;  Hunter  v.  Martin,  2  Rich.  Law,  541 ;  Marvin 
V.  Trumbull,  Wright,  386.     But  contra,  Blake  v.  Nutter,  19  Me.  16. 

*  McGuire  v.  Ramsey,  4  Eng.  (Ark.)  518;  Moreau  v.  SaflTerans,  3  Sneed,  595. 

6  Smith  V.  Allen,  5  Allen,  456. 

6  Howard  v.  Priest,  5  Met.  581,  585.  See  also  Buchan  v.  Sumner,  2  Barb.  Ch. 
165 ;  Galbraith  v.  Gedge,  16  B.  Mon.  631  ;  Smith  v.  Tarlton,  2  Barb.  Ch.  336 ; 
Black  V.  Black,  15  Geo.  445;  Lang  v.  Waring,  25  Ala.  625. 


668  LAW  OP  REAL  PROPERTY.  [bOOK  L 

personal,  enabling  the  surviving  partner,  if  it  is  needed  to  pay 
compan}^  debts,  to  dispose  of  it  and  apply  it  accordingly.^ 
And  where  the  business  of  the  partnership  consisted  of  buying 
and  selling  lands,  it  was  held  that,  on  closing  it,  a  court  of 
chancery  might  cause  the  unsold  lands  to  be  sold,  and  the 
proceeds  divided  among  the  partners.^  But  in  another  case,  a 
share  of  the  surplus  of  unsold  lands  at  the  death  of  a  partner 
went  to  his  widow  and  heirs.^  In  order  to  subject  real  estate 
to  the  incidents  of  partnership  assets,  it  must  have  been 
bought  with  partnership  funds,  for  partnership  purposes, 
though  the  deed  may  be  made  to  the  several  partners,  to  hold 
to  them  and  their  heirs.*  And  the  same  can  only  be  conveyed 
by  a  deed  executed  by  those  having  the  legal  title.^  And  it 
may  be  added,  if  one  partner  leases  the  real  estate  of  the  part- 
nership in  his  own  name,  it  enures  to  the  benefit  of  the  firm.^ 

2.  And  in  England,  courts  of  equity  have,  at  times,  been 
inclined  to  regard  real  estate  thus  held  as  personal,  subject  to 
the  same  rules  of  distribution  as  personal  estate."  This  doc- 
trine was  applied  in  the  case  cited  below,  where  A  and  B 
purchased  land  on  a  joint  speculation  with  their  joint  moneys, 
for  the  purpose  of  building  uj)on  and  reselling  at  joint  profit  or 
loss.  It  was  held  to  be  a  conversion  out  and  out ;  and  upon 
one  of  them  dying,  his  share  in  the  real  estate  passed  to  his 
personal  representatives.^ 

3.  In  this  country,  and  it  would  seem  generally  in  England, 
the  doctrine  of  survivorship  is  limited  by  the  extent  to  which 

1  Delmonico  v.  Guillaurae,  2  Sandf.  Ch.  3G6 ;  Boyers  v.  Elliott,  7  Hnmph.  204  ; 
Boyce  v.  Coster,  4  Strobh.  Eq.  25;  Matlock  v.  Matlock,  5  Ind.  403 ;  Arnold  v. 
Wainwright,  6  Minn.  358. 

2  Olcott  V.  Wing,  4  McLean,  15. 

3  Uilworth  V.  Mayfield,  36  Miss.  40.  See  Ludlow  v.  Cooper,  4  Ohio  St.  1 ; 
Whaling  Co.  v.  Borden,  10  Cush.  458. 

*  Cox  V.  McBurney,  2  Sandf.  561 ;  Lancaster  Bank  v.  Myley,  15  Penn.  St. 
544 ;  Deming  v.  Colt,  3  Sandf.  284 ;  Coder  v.  Haling,  27  Penn.  St.  84 ;  Arnold  v. 
Wainwright,  6  Minn.  370. 

6  Davis  V.  Christian,  15  Gratt.  11. 

«  Moderwell  v.  Mullison,  21  Penn.  St.  257. 

T  Tud.  Cas.  721.  See  also  Rice  v.  Barnard,  20  Vt.  479 ;  Lang  v.  Waring,  17 
Ala.  145. 

8  Darby  v.  Darby,  3  Drewry,  495,  in  1856.  See  the  comments  on  this  case,  98 
Mass.  114  ;  1  White  &  T.  cases  in  equity,  4th  ed.  192,  193,  and  cases  there  col- 
lected. 


CH.  XIII.  §  4.]  JOINT   ESTATES.  669 

equity  stamps  tlie  character  of  personalty  upon  such  estates, 
and  that  is  so  far  as  and  no  farther  than  they  are  required  to 
pay  partnership  debts.  If,  therefore,  one  of  two  partners 
owning  real  estate  dies,  the  survivor  has  an  equitable 
lien  upon  the  *  share  of  the  deceased,  which  takes  [*423] 
precedence  of  any  claim  for  dower  or  of  heirs,  to  have 
the  same  applied,  if  necessary,  to  the  payment  of  the  outstand- 
ing debts  of  the  partnership,  or  to  reimburse  the  survivor  if  he 
shall  have  paid  more  than  his  share  of  the  partnership  indebt- 
edness.^ And  if  the  surviving  partner  be  himself  insolvent, 
his  assignees  may  avail  themselves  of  the  partnership  real  es- 
tate, if  needed  for  the  payment  of  the  company  debts,  and  to 
aid  in  this  they  may  require  the  widow  and  heirs  of  the  de- 
ceased to  execute  proper  deeds  of  release.^  In  Tennessee 
and  North  Carolina  this  right  of  survivorship  is  secured  by 
statute,  and  it  has  been,  accordingly,  held  in  the  former  State, 
that  the  survivor  of  a  partnership  may  sell  the  entire  part- 
nership property  as  a  surviving  joint-tenant.^  In  Virginia 
and  Maine  the  survivor  of  a  partnership  has  no  rights  in  re- 
spect to  their  real  estate  superior  to  any  ordinar}^  survivor  of 
two  or  more  tenants  in  common.*  In  Alabama,  equity  regards 
real  estate  owned  by  partners  as  the  property  of  the  firm,  and 
will  appropriate  it  in  payment  of  the  debts  of  the  firm, 
whether  it  be  in  the  possession  of  the  surviving  partner,  or 
in  that  of  his  heirs ;  neither  of  them  can  have  any  beneficial 
interest  in  the  real  estate  of  the  partnership  until  the  debts 
of  the  firm  are  paid.  But  it  was  held,  that  if  the  surviving 
jjartner,  for  a  valuable  consideration,  convey  his  interest  in  the 
real  estate  to  a  purchaser  without  notice  that  it  is  needed  to 
pay  partnership  debts,  he  will  hold  it  against  the  creditors  of 
the  firm.  The  surplus  of  partnership  lands,  after  paying  the 
partnership  debts,  has  the  qualities  of  real  estate,  and  is  dis- 

1  Bxirnside  v.  Merrick,  4  Met.  537  ;  Dyer  v.  Clark,  5  Met.  562  ;  Smith  i'.  Jack- 
son, 2  Edw.  Ch.  28 ;  Watkins,  Conv.  167,  168 ;  Howard  v.  Priest,  5  Met.  585 ; 
Buffum  V.  Buffum,  49  Me.  108  ;  Loubat  v.  Nourse,  5  Flor.  350. 

a  Winslow  V.  Chiffelle,  Harper,  Eq.  25  ;  2  Spence,  Eq.  Jur.  209 ;  Story,  Eq. 
Jur.  §§  674,  675 ;  Delmonico  v.  Guillaume,  2  Sandf.  Ch.  366. 

3  Tennessee  Code,  1858,  §  2011;  N.  Carohna  Rev.  Code,  1854,  c.  43,  §  2 ; 
M'Allister  v.  Montgomery,  3  Hayw.  96.  But  see  Gaines  v.  Catron,  1  Humph. 
614;  Blake  v.  Nutter,  19  Me.  16. 

•*  Deloney  v.  Hutcheson,  2  Rand.  183.   But  see  Morris  v.  Morris,  4  Gratt.  293. 


670  LAW  OF  REAL  PROPERTY.  [bOOK  I. 

posed  of  accordingly.^  And  in  Pennsylvania,  partnership 
lands  are  no  longer  regarded  as  personalty  than  till  the 
debts  of  the  partnership  are  paid.  Whatever  remains  has  the 
properties  of  realty  owned  by  the  several  partners.  Neither 
of  these  can  sell  his  interest  in  them  as  personalty.^ 

4.  And,  as  would  naturally  be  inferred  from  the  premises 
above  stated,  whatever  remains  of  such  partnership  real  estate 
after  the  debts  of  the  company  shall  have  been  discharged,  is 
held  in  common,  at  once  subject  to  dower  or  curtesy,  and  goes 
to  heirs  or  devisees  accordingly,^  and  is  subject  to  partition.* 


SECTION  V. 

JOINT  MORTGAGES. 

1,  2.     Of  mortgages  to  several  to  secure  a  joint  debt. 

3.  Of  mortgages  to  several  to  secure  separate  debts. 

4.  Effect  of  foreclosure  on  joint  mortgages. 

1.  Another  class  of  joint  estates  which  has  already  been 
mentioned  is  that  by  joint  mortgages.     In  England 
[*424]  and  in  *  most  of  the  States,  the  interest  of  a  mort- 
gagee in  lands  is  regarded  as  an  estate  in  lands,  but 

Note.  —  The  following  cases  lately  decided  cover  so  many  of  the  points  stated 
in  the  several  paragraphs  of  the  foregoing  section,  and  are  so  generally  in  accord 
with  what  is  therein  stated,  that  they  are  referred  to  in  general  terms,  instead  of 
citing  them  in  detail,  to  sustain  the  several  points  upon  which  they  bear.  Le- 
faver's  Appeal,  69  Penn.  St.  122  ;  Bopp  v.  Fox,  63  111.  540  ;  Ebbert's  Appeal,  70 
Penn.  St.  81 ;  Wilcox  v.  Wilcox,  13  Allen,  252 ;  Jones's  Appeal,  70  Penn.  St. 
169;  Shearer  v.  Shearer,  98  Mass.  107;  Meily  v.  Wood,  71  Penn.  St.  488;  Fos- 
ter's Appeal,  22  Am.  L.  Reg.  300,  to  which  is  appended  an  extended  note,  307- 
310,  collating  the  American  cases  upon  the  subject,  and  concluding  "  that  the 
surplus  proceeds  of  real  estate  of  a  partnership,  after  the  creditors  are  satisfied, 
and  the  equities  of  the  partners  adjusted,  are  to  be  considered  as  realty,  and 
that,  on  the  death  of  a  partner,  his  interest  in  such  surplus  goes  to  his  heir, 
subject  to  the  widow's  dower,  and  not  to  his  personal  representatives." 

1  Offutt  V.  Scott,  47  Ala.  105.         2  Foster's  Appeal,  74  Penn.  St.  398,  399. 

3  Burnside  v.  Merrick,  4  Met.  537  ;  Howard  v.  Priest,  5  Met.  586  ;  Buchan  v. 
Sumner,  2  Barb.  Ch.  163;  Buckley  v.  Buckley,  11  Barb.  43;  Tillinghast  v. 
Champlin,  4  R.  I.  173;  Dilworth  v.  Mayfield,  36  Miss.  40;  Piper  v.  Smith,  1 
Head,  93. 

*  Patterson  v.  Blake,  12  Ind.  436 ;  Loubat  v.  Nourse,  5  Flor.  363. 


CH.  XIII.  §  5.]  JOINT   ESTATES.  671 

SO  far  partaking  of  the  nature  of  the  debt  thereby  secured, 
that,  for  purposes  of  remedy  and  enforcement  of  the  same,  the 
doctrine  of  survivorship  applies  as  well  to  the  estate  as  the 
debt ;  and  this  extends  to  the  assignment  of  a  mortgage  to 
two  trustees.^ 

2.  If,  in  such  a  case,  either  of  the  mortgagees  dies,  the  sur- 
vivors may  proceed  in  their  own  name,  and  do  whatever  is 
necessary  to  foreclose  the  ijiortgage  ;  and  for  that  purpose 
they  have  a  right  to  the  possession  of  the  mortgage  and  notes, 
without  making  the  heir  or  personal  representative  of  their 
co-mortgagee  a  party.^ 

3.  But  if  the  debts  secured  by  the  mortgage  belong  in 
severalty  to  the  different  mortgagees  named,  they  become,  in 
such  case,  tenants  in  common  and  not  joint-tenants  as  to  such 
estate,  without  the  right  of  survivorship  ;  and  if,  after  the 
debt  of  one  shall  have  been  satisfied,  the  other  dies,  his  repre- 
sentatives, and  not  the  survivor  or  survivors,  would  be  the 
only  proper  parties  to  proceedings  to  enforce  the  mortgage.^ 

4.  As  soon,  however,  as  the  mortgage  is  foreclosed,  though 
the  debt  may  have  been  a  joint  one,  the  mortgagees  become 
tenants  in  common  of  the  estate,  the  share  of  each  being  in 
proportion  to  his  share  of  the  debt.* 

1  "Webster  v.  Vanderenter,  6  Gray,  428. 

2  Appleton  V.  Boyd,  7  Mass.  131 ;  Kinsley  v.  Abbott,  19  Me.  430 ;  Martin  r. 
M'Reynolds,  6  Mich.  72 ;  Cote  v.  Dequindre,  Walker,  Ch.  64. 

8  Burnett  v.  Pratt,  22  Pick.  557  ;  2  Dane,  Abr.  226 ;  Brown  v.  Bates,  55  Me. 
522. 

*  Goodwin  v.  Richardson,  11  Mass.  469 ;  Deloney  v.  Hutcheson,  2  Rand.  188 ; 
Donnels  v.  Edwards,  2  Pick.  617;  Tud.  Gas.  721;  Pearce  v.  Savage,  45  Me.  90; 
Kinsley  v.  Abbott,  19  Me.  430. 


672  LAW   OP   EEAL   PROPERTY.  [BOOK   I. 


SECTION  VI. 

ESTATES   IN   ENTIRETY. 

1.  Who  are  tenants  by  entirety,  and  how  they  hold. 

2.  Of  the  nature  of  survivorship  <as  to  such  estates. 

3.  Effect  of  conveyance  by  husband. 

3  a.     Same  subject,  Stat.  32  He».  VIII.  c.  28,  §  6. 

4.  When  husband  and  wife  may  be  tenants  in  common. 

5.  American  law  on  the  subject. 

1.  A  STILL  more  peculiar  joint  estate  is  that  which  belongs 
to  a  husband  and  wife,  where  the  same  is  conveyed  to  them 
as  such.     If  a  man  and  woman,  tenants  in  common,  marry, 

they  still  continue  to  hold  in  common.^  But  if  the 
[*425]   estate  is  conveyed  *  to  them  originall}'  as   husband 

and  wife,  they  are  neither  tenants  in  common  nor 
properly  joint-tenants,  though  having  the  right  of  survivor- 
ship, but  are  what  are  called  tenants  by  entirety.  While 
such  estates  have,  like  a  joint-tenancy,  the  quality  of  survi- 
vorship, they  differ  from  that  in  this  essential  respect,  that 
neither  can  convey  his  or  her  interest  so  as  to  affect  the  right 
of  survivorship  in  the  other.  They  are  not  seised,  in  the  eye 
of  the  law,  of  moieties,  but  of  entireties.^ 

2.  In  such  cases,  the  survivor  does  not  take  as  a  new  ac- 
quisition, but  under  the  original  limitation,  his  estate  being 
simply  freed  from  participation  by  the  other  ;  ^  so  that  if,  for 

1  1  Prest.  Est.  484  ;  Co.  Lit.  187  b ;  Ames  v.  Norman,  4  Sneed,  683,  690 ; 
McDermott  v.  French,  15  N.  J.  Ch.  80 ;  Babbit  (-•.  Scroggins,  1  Duvall,  Ky.  272. 

2  1  Prest.  Est.  131;  2  Flint,  Real  Prop.  527;  Tud.  Cas.  7-30;  Shaw  v.  Hear- 
say, 5  Mass.  521 ;  Fox  v.  Fletcher,  8  Mass.  274;  Draper  v.  Jackson,  16  Mass. 
480;  Brownson  v.  Hull,  16  Vt.  309;  Harding  v.  Springer,  14  Me.  407;  Fairchild 
V.  Chastelleux,  1  Penn.  St.  176 ;  Den  v.  Branson,  5  Ired.  426 ;  Taul  v.  Camp- 
bell, 7  Yerg.  319  ;  Cord,  Mar.  Women,  §  107  ;  Rogers  v.  Grider,  1  Dana,  242 ; 
Ross  V.  Garrison,  lb.  37  ;  Doe  v.  Howland,  8  Cow.  277  ;  2  Kent,  Com.  132;  Tor- 
rey  v.  Torrey,  14  N.  Y.  (4  Kern.)  430 ;  Ames  v.  Norman,  4  Sneed,  683  ;  Wright 
V.  Saddler,  20  N.  Y.  320.  See  Gen.  Stat.  Vt.  1863,  c.  04,  §  3 ;  Davis  v.  Clark,  26 
Ind.  424;  Ketchum  v.  Walsworth,  5  Wis.  95;  Babbit  v.  Scroggin,  1  Duv.  Ky. 
272;  Wales  v.  Coffin,  13  Allen,  215 ;  Lux  v.  Hoff,  47  111.  425;  Marriner  v.  Saun- 
ders, 10  111.  124;  McCurdy  v.  Canning,  64  Penn.  St.  39;  Hemingway  v.  Scales, 
42  Mass.  1. 

8  Watkins,  Conv.  170;  Tud.  Cas.  730. 


CH.  XIII.  §  6.]  JOINT    ESTATES.  673 

instance,  the  wife  survives  and  then  dies,  her  heirs  would 
take  to  the  exclusion  of  the  heirs  of  the  husband. ^  Nor  can 
partition  be  made  of  the  estate .^ 

3.  If  the  husband  convey  the  entire  estate  during  coverture, 
and  dies,  his  conveyance  will  not  have  affected  her  rights  of 
survivorship  to  the  entire  estate.  But  if,  in  such  case,  the 
husband  survive,  his  conveyance  becomes  as  effective  to  pass 
the  whole  estate  as  it  would  have  been  had  the  husband  been 
sole  seised  when  he  conveyed.^  And  during  coverture,  the 
husband  has  the  entire  control  of  the  estate,  and  the  same 
is  liable  to  be  seized  by  his  creditors  during  his  life.^  But 
if  husband's  creditors  levy  upon  the  estate,  it  survives  to 
the  wife  on  the  death  of  the  husband,  as  if  no  such  levy 
had  been  made.^  And  even  where  the  husband  mortgaged 
half  the  estate  for  the  support  of  self  and  wife,  and  she 
joined  in  the  deed  releasing  her  dower  and  homestead,  it  was 
held  to  be  of  no  avail  to  bar  her  right  as  survivor  upon  the 
death  of  the  husband,  since  her  release  of  dower  conveyed 
nothing  ;  nor  was  she  estppped  by  the  mortgage,  because, 
being  a,  f erne  covert,  she  did  not  bind  herself  personally.^ 

3  a.  Although  the  effect  of  a  disseisin  of  the  husband,  or 
his  conveyance  of  her  estate  upon  a  wife's  interest  in  lands, 
has  been  referred  to  (p.  *  141,  ante),  it  seems  proper  to  speak, 
in  this  connection,  more  at  large  upon  the  subject.  By  the 
common  law,  if  a  husband  by  fine  or  feoffment  conveyed  land 
in  fee  which  he  held  in  the  right  of  his  wife,  including  estates 
held  in  entirety,  it  worked  a  discontinuance  of  her  estate,  and, 
at  his  death,  she  or  her  heirs  were  driven  to  an  action  to  re- 
cover it.  To  obviate  this,  the  statute  32  Hen.  VIII.  c.  28, 
§  6,  provided  that  such  conveyance  should .  not  work  a  dis- 
continuance, but  that,  at  the  death  of  the  husband,  the  wife 
or  her  heirs  might  enter  upon  the  inheritance,  without  being 
driven  to  an  action.  This  statute  was  once  re-enacted,  and 
stiD  seems  to  be  in  force  in  New  York.  It  is  in  force  in  Ten- 
nessee, in  Massachusetts,  and  has  been  re-enacted  in  Ken- 

i  1  Prest.  Est.  132.  2  Bennett  v.  ChUd,  19  Wis.  364. 

3  1  Prest.  Est.  135 ;  Ames  v.  Norman,  4  Sneed,  683. 

4  Barber  v.  Harris,  15  Wend.  615;  Bennett  v.  Cliild,  19  Wis.  365. 

5  French  v.  Mehan,  56  Penn.  St.  280.         6  Pierce  v.  Chase,  108  Mass.  258. 
VOL.  I.  43 


674  LAW  OF  REAL  PEOPERTY.  [bOOK  L 

tacky,  and  such  is  the  effect  of  the  statutes  in  New  Jersey. 
In  Tennessee,  the  wife  has  seven  3'ears  after  the  husband's 
death  in  which  to  enter  or  bring  her  action.  In  Kentucky, 
she  has  twenty  years.  Nor  has  the  tenant,  in  such  case,  any 
right  to  a  notice  to  quit  before  instituting  proceedings  to  re- 
move him.  He  was  not  even  tenant  at  sufferance,  as  the 
rehalion  of  landlord  and  tenant  did  not  subsist  between  them.^ 
If  there  be  a  divorce  of  the  wife  from  the  husband,  she  is  re- 
stored to  a  moiety  of  the  estate,  during  the  lives  of  the  two, 
with  the  right  of  survivorship  upon  his  death.  But  such 
divorce  cannot  disturb  a  conveyance  of  the  estate  already 
made  by  the  husband.  So  long  as  the  husband  lives,  such 
conveyance  will  be  good.^ 

4.  It  is  always  competent,  however,  to  make  husband  and 
wife  tenants  in  common,  by  proper  words,  in  the  deed  or  de- 
vise by  which  they  take,  indicating  such  an  intention.^  And 
if  an  estate  be  made  to  a  husband  and  wife  and  a  third  per- 
son, the  shares  of  each  will  depend  upon  the  kind  of  estate 
the  husband  and  wife  take.  If  there  is  nothing  to  indicate  a 
tenancy  in  common,  they  together  would  take  one  half  by 
entirety,  and  the  third  person  the  other  half,  to  be  held  in 
common ;  whereas,  if  they  take  in  common,  then  each  is  en- 
titled to  one-third  in  common  and  undivided.     And  in  the 

case  supposed,  if  their  connection  with  a  third  person 
[*426]   was  that  of  a  joint-tenancy,  and  *  he  were  to  die,  the 

husband  and  wife  would,  by  their  survivorship,  take 
the  whole  estate  by  entirety.*  Where  a  conveyance  was  to 
a  husband  and  wife  and  their  six  children  by  name,  it  was 
held  that  the  interest  of  the  tenants  was  divisible  into  seven 
parts,  of  which  the  husband  and  wife  held  one  by  entirety, 
undivided  and  in  common  with  the  other  six  parts  undivided, 
to  which  the  several  children  were  entitled.^ 

5.  The  law  of  this  country  is  not,  however,  uniform  as  to 
this  doctrine  of  entirety.     In  Ohio,  where  there  never  was 

1  Co.  Lit.  326  a ;  2  Kent,  Com.  133,  and  note ;  Miller  v.  Miller,  Meigs,  492, 
493;  Miller  v.  Shackleford,  4  Dana,  264,  277  ;  Bruce  v.  Wood,  1  Met.  542. 

2  Ames  V.  Norman,  4  Sneed,  683. 

3  McDermott  v.  French,  15  N.  J.  c.  81. 

*  1  Prest.  Est.  132;  2'Flint,  Real  Prop.  327. 
6  Barber  v.  Harris,  15  Wend.  615. 


CH.  XIII.  §  6.]  JOINT   ESTATES.  675 

any  joint-tenancy  with  a  right  of  survivorship,  it  is  held  that 
a  devise  to  a  husband  and  wife  and  their  heirs  makes  them 
tenants  in  common,  and  such  is  the  effect  of  a  conveyance  to 
husband  and  wife  of  an  equitable  estate.^  In  Connecticut,  a 
husband  and  wife,  in  such  a  case,  are  considered  joint-tenants, 
and  not  tenants  in  entirety.^  In  Virginia,  if  an  estate  of  in- 
heritance is  devised  to  husband  and  wife,  upon  the  death  of 
either,  his  or  her  share  descends  to  heirs,  subject  to  debts, 
rights  of  curtesy,  or  of  dower,  as  the  case  may  be.^  In  Rhode 
Island,  such  an  estate  in  husband  and  wife  is  a  tenancy  in 
common,  without  the  right  of  survivorship.*  And  the  same 
is  the  law  in  Iowa,  unless  the  contrary  is  expressed  in  the 
grant.5  While,  in  Kentucky,  there  is  no  right  of  survivor- 
ship in  such  a  case,  unless  expressly  provided  for ;  and  a 
husband  and  wife  take  as  tenants  in  common,  with  the  inci- 
dents of  curtesy  and  dower  in  the  respective  moieties.^ 

1  Sergeant  v.  Steinberger,  2  Ohio,  305 ;  Wilson  v.  Fleming,  13  Ohio,  68. 

2  Whittlesey  v.  Fuller,  11  Conn.  337,  341.     • 

3  Code,  1773,  c.  112,  18,  19.  *  Gen.  Stat.  1872,  c.  161,  §  1. 

5  Hoffman  v.  Stigers,  28  Iowa,  302. 

6  Gen.  Stat.  1873,  c.  52,  art.  4,  §  18 ;  Rogers  v.  Grider,  1  Dana,  242. 


G76  LAW   OP  REAL  PROPERTY.  [BOOK  I. 


SECTION  VII. 

PARTITION. 

1.  Of  partition  by  common  law  and  by  statutes. 

2,  3.  Partition  by  chancery. 

4-6.  How  and  wlien  made  by  common  law  and  chancery. 

7,  8.  How  far  seisin  necessary  to  maintain  partition. 

8  a.  Who  must  be  parties  to  proceedings  for  partition. 

9.  Of  partition  of  several  parcels. 

10.  Of  partition  of  mills  and  the  like. 

11.  Of  probate  partition. 

12,  13.     Of  partition  by  parties,  how  made. 

14-17.     Of  tlie  setting  up  of  an  adverse  title  by  one  co-tenant  against  an- 
other. 

IB.     Each  co-tenant  a  warrantor  to  the  other. 

19.     Tenant's  remedy  if  evicted  of  his  share. 
Note. —  Statutes  as  to  waste  and  mode  of  partition. 

1.  At  common  law  no  owner  of  any  of  these  joint-estates, 
except  parceners,  had  a  right  to  have  partition  thereof  made 
against  the  will  of  his  co-tenant.  The  right  of  having  partition 
in  the  excepted  estates  gave  rise  to  the  name  of  parcenary. 
And  for  this  or  some  other  reason,  in  some  of  the  States  it  has 
been  held  that  a  parol  partition  of  their  estate  between  par- 
ceners, if  followed  by  possession,  is  as  good  and  effectual  as  if 
made  by  deed.  It  is  apprehended  that  this  is  confined  to 
States  where  coparcenary  at  common  law  is  still  retained,  and 
would  not  extend  to  States  where  heirs  take  as  tenants  in 
common.i  The  statute  31  Hen.  VIII.  c.  1,  and  32  Hen  VIII. 
c.  32,  provided  for  a  compulsory  process  of  partition  by  a  writ 
or  action  at  common  law.^  This  form  of  proceeding  continued 
in  England  to  be  one  of  the  forms  by  which  partition  could  be 
effected,  until  the  statute  3  &  4  Wm.  IV.  c.  27,  by  which  it 
was  abolished,  and  the  statutes  by  which  it  was  cre- 
[*427]  ated  have  been  *  re-enacted  in  most  of  the  States.    But 

1  Coles  V.  Woodmg,  2  Pat.  &  H.  (Va.)  189,  197  ;  Wildey  v.  Barney's  Lessee, 
31  Miss.  644,  G52. 

2  2  Flint,  Real  Prop.  332 ;  Story,  Eq.  Jur.  §  647. 


CH.  XIII.  §  7.]  JOINT    ESTATES.  677 

in  England  and  this  country  it  had  become  practically  obsolete 
many  years  ago.^ 

2.  There  is  still  a  power  to  compel  partition  which  maj'-  be 
readily  applied  in  both  countries.  In  England  it  is  done 
through  chancery.  The  laws  of  the  several  States  upon  the 
subject  will  be  found  compiled  at  the  close  of  this  chapter. 
But  in  some  form  or  other,  the  right  of  having  partition  made 
is  incident  to  an  ownership  in  joint-tenancy  as  well  as  to  estates 
in  common.2  But  it  is  competent  for  joint-owners  of  land  to 
have  their  estate  so  created  as  to  prevent  partition  thereof 
being  made  except  by  mutual  consent,  as  where  several  joined 
in  purchasing  an  estate  on  which  to  erect  and  maintain  a 
hotel,  and  had  a  clause  inserted  in  the -deed  by  which  they 
acquired  their  title,  prohibiting  them  from  having  partition 
thereof  made.  They  were  thereby  estopped  from  maintaining 
a  process  for  partition.^  But  where,  by  the  terms  of  the  grant 
of  a  parcel  of  land,  it  was  to  be  occupied  in  common  as  a  yard 
by  the  grantor  and  grantee  and  their  heirs  and  assigns,  it  was 
held  that  partition  of  the  premises  might  be  made,  giving  to 
each  an  easement  in  the  land  of  the  other  so  as  to  serve  the 
purposes  of  the  grant.*  But  where  one  tenant  in  common 
owned  one  undivided  part  in  his  own  right  in  common  with 
another  part  of  which  he  and  others  were  trustees,  it  was  held 
he  could  not  have  partition  of  the  estate.^ 

3.  This  power  of  compelling  partition  has  been  exercised 
in  England  by  chancery  ever  since  the  time  of  Elizabeth.^  It 
may  be  done  in  chancery  in  several  of  the  States,  in  most  if 
not  all  of  which  there  are  also  modes  provided  by  statute  for 

1  4  Kent,  Com.  364 ;  Champion  v.  Spence,  1  Root,  147  ;  Cook  v.  Allen,  2  Mass. 
462;  Witherspoon  i>.  Dunlap,  1  McCord,  546;  M'Kee  v.  Straub,  2  Binn.  1; 
Wms.  Re;U  Prop.  81, 115. 

2  Mitchell  V.  Starbuck,  10  Mass.  5 ;  Witherspoon  v.  Dunlap,  Harper,  390 ; 
Potter  V.  Wheeler,  13  Mass.  504 ;  Ledbetter  v.  Gash,  8  Ired.  462 ;  Ilanbury  v. 
Hussey,  5  E.  L.  &  Eq.  81;  Higginbottoni  v.  Short,  25  Miss.  160;  Holmes 
V.  Holmes,  2  Jones,  Eq.  334.  See  Coleman  v.  Coleman,  19  Penn.  St.  100 ;  Hoyt 
V.  Kimball,  49  N.  H.  322. 

3  Hunt  V.  Wright,  47  N.  H.  399,  401  ;  see  also  Fisher  v.  Dewerson,  3  Mot. 
646. 

*  Fisher  v.  Dewerson,  sup. ;  Hoyt  v.  Kimball,  49  N.  H.  322. 

6  Winthrop  v.  Minot,  9  Gush.  405.  ^  Story,  Eq.  Jur.  §  647. 


678  LAW  OP  REAL  PROPERTY.  [bOOK  I. 

causing  partitions  to  be  made.^  In  New  York  a  wife,  owning 
land  as  tenant  in  common  with  her  husband,  may  have  a  bill 
in  equity  for  partition  of  the  same.^  The  act  of  making  par- 
tition through  chancery  is  done  by  commissioners  appointed 
for  the  purpose,  who  return  their  doings  into  court,  and,  in 
order  to  make  it  effectual,  mutual  conveyances  to  each  other 
by  the  co-tenants  are  required.^  And  if  it  becomes  necessary, 
in  order  to  equalize  the  partition,  the  commissioners  may 
require  the  payment  of  money  by  one  co-tenant  to  another, 
called  owelty  of  partition.^  And  if  one  co-tenant  has  made 
improvements  upon  the  estate,  equity  may  so  divide  it  as  to 
give  these  to  the  tenant  who  made  them,  although,  at  law,  he 
would  have  no  right  of  action  to  recover  their  value.^  But 
under  proceedings  at  law  the  commissioners  cannot  settle  con- 
tested questions  of  title  between  the  parties ;  such  questions 
are  to  be  settled  at  the  original  hearing  :  nor  have  they  power 
to  award  that  buildings  standing  upon  the  premises  are  the 
property  of  some  one  of  the  tenants  in  common,  and  to  set 
the  same  to  him  as  his  own.^  In  Illinois,  however,  if  one 
co-tenant  make  improvements  upon  the  common  estate,  the 
court  directs  the  commissioners  to  set  the  improved  part  to 
him  without  charging  him  for  such  improvements.'' 

4.  When  partition  was  made  upon  proceedings  at  com- 
mon law,  it  was  done  by  a  sheriff  and  jury,  who  set  out  to 
each  his  proper  share,  and  this  was  binding  upon  the  parties 
without  the  formality  of  mutual  conveyances,  as  required 
when  made  in  chancery.^    But  chancery  did  not  act  in  case 

1  Whitton  V.  Whitton,  36  N.  H.  326 ;  Pattan  v.  Wagner,  19  Ark.  233  ;  Bailey 
V.  Sissan,  1  R.  I.  233 ;  Spitts  v.  Wells,  18  Mo.  468 ;  Adam  v.  Ames  Iron  Co.,  24 
Conn.  230  ;  Greenup  v.  Sewell,  18  111.  53.  In  Indiana  the  proceedings  are  in  law, 
and  not  in  equity.     AVilbridge  v.  Case,  2  Carter  (Ind.),  36. 

2  Moore  v.  Moore,  47  N.  Y.  469. 
^  Story,  Eq.  Jur.  §  ti'sO. 

*  Story,  Eq.  Jur.  §  654. 

5  Green  v.  Putnam,  1  Barb.  500.  See  also  Crafts  v.  Crafts,  13  Gray,  360 ; 
Thorn  v.  Thorn,  14  Iowa,  55  ;  Robinson  v.  McDonald,  11  Tex.  385. 

6  Gourley  v.  Woodbury,  43  Vt.  89. 

■7  Dean  v.  O'Meara,  47  111.  120;  Kurtz  v.  Hilmer,  55  111.  521.    See  a  like  doc 
trine  in  Kentucky.     Borah  v.  Archers,  7  Dana,  177. 
8  Story,  Eq.  Jur.  §§  652,  G54. 


CH.  XTII.  §  7.]  JOINT   ESTATES.  679 

the  title  to  the  land  was  in  dispute.  It  required  the  question 
of  title  to  be  first  settled  at  law.^ 

5.  Proceedings  in  partition,  like  real  actions,  generally  are 
local,  and  must  be  had  in  the  county  in  which  the  land  lies 
which  is  the  subject  of  division.^  A  petition  for  partition 
is  a  proceeding  in  rem?  In  a  writ  of  partition  all  the 
co-tenants  must  be  named,  and  partition  must  be  made  amongst 
them,  the  share  of  each  must  be  stated,  and  no  partition  can 
be  made  where  any  of  the  co-tenants  are  unknown,  or  their 
shares  cannot  be  stated.  But  in  Massachusetts  one  co-tenant 
can  have  his  share  set  off,  leaving  the  other  co-tenants  to  have 
their  shares  set  off  by  a  new  process,  and  this  though  the 
others  are  unknown.  The  essential  thing  in  such  a  process 
is,  that  the  petitioner  should  have  an  estate  in  possession  in 
common  with  some  other  person.  It  is  no  objection  to  the 
proceeding  that  there  is  a  contingent  remainder  in  another 
in  some  portion  of  the  estate.  But  a  remainder-man  cannot 
have  partition,  and  if  he  has  a  share  in  possession,  and  one  in 
remainder,  he  may  have  the  first  set  off  without  affecting  his 
right  to  the  other  share.  As  to  the  two  he  is  regarded  as  a 
separate  tenant.  It  is  no  objection  to  maintaining  partition 
that  the  petitioner's  share  is  subject  to  a  mortgage  if  the 
mortgagor  is  in  possession.*  By  the  law  of  the  same  State,  a 
tenant  in  common  for  life  may  have  partition,  and  it  is  no 
objection  to  the  process  that  the  petitioner  holds  his  estate 
subject  to  a  condition  if  the  same  has  not  been  broken.^ 

*  6.  It  is  not  com23etent  for  a  tenant  in  common  to  [*428] 
enforce  partition  as  to  a  part  of  the  common  estate. 

He  must  go  for  a  partition  of  the  entire  estate  if  he  would 
divide  any  part.^  But  where  the  commissioners,  in  dividing 
the  land,  laid  an  open  passage-way  through  it,  and  then  set  off 

i  2  Daniels,  Ch.  (Perk,  ed.)  1326,  n. ;  4  Kent,  Com.  365  ;  Hosford  v.  Meriara, 
5  Barb.  51 ;  McCall's  Lessee  v  Carpenter,  18  How.  297  ;  Shearer  v.  Winston,  33 
Miss.  149  ;  Tabler  v.  Wiseman,  2  Ohio  St.  207 ;  Obert  v.  Obert,  2  Stockt.  Ch.  98. 

2  Bonner,  Petitioner,  4  Mass.  122;  Brown  v.  McMullen,  1  Nott  &  McC  252; 
Peabody  v.  Minot,  24  Pick.  3.33. 

3  Corwithe  v.  Griffing,  21  Barb.  9. 

*  Taylor  v.  Blake,  109  Mass.  613.         5  Judkins  r.  Judkins,  109  Mass.  182. 

6  Duncan  v.  Sylvester,  16  Me.  388;  Colton  v.  Smith,  11  Pick.  311;  Bigelow 
V.  Littlefield,  52  Me.  24. 


680  LAW  O.F  REAL  PROPERTY.  [bOOK  I. 

the  respective  shares  of  the  co-tenants,  bounding  them  by  this 
passage-way,  and  giving  to  each  an  easement  of  way  over  the 
open  passage  to  be  used  by  tliera  in  common,  it  was  held  to 
be  a  good  partition  ;  the  share  of  each  would  be  bounded  by 
the  centre  line  of  this  way.^  But  two  or  more  of  several 
tenants  in  common  may  join  in  having  their  respective  inter- 
ests set  off  together  from  the  other  shares  of  their  co-tenants. 
Or  one  or  more  of  the  tenants  may  have  their  shares  set  off, 
leaving  the  rest  of  the  common  estate  undivided.^  This  would 
be  so,  though  the  parties,  other  than  the  petitioners,  are 
unknown.  The  effect  of  a  partition  is  like  that  of  a  judgment 
in  establishing  the  titles  of  the  respective  tenants.  It  requires 
no  deeds  between  the  parties  to  make  good  the  titles.^  A 
judgment  in  partition,  settling  and  confirming  the  shares  and 
interests  of  the  several  parties,  is  equivalent  to  a  conveyance, 
and  is  to  be  construed  by  the  same  rules  as  ordinary  convey- 
ances.^ But  where  tenants  in  common  covenanted  that  a 
certain  part  of  the  premises  should  for  ever  remain  to  be  occu- 
pied by  them  and  their  heirs  and  assigns  as  a  j^ard,  it  was  no 
bar  to  having  a  partition  of  the  premises,  but  the  right  to  this 
occupation  in  the  nature  of  an  easement  will  remain  after 
as  before  the  partition.^  But  if,  in  a  deed  to  two  persons,  it  is 
recited  at  the  close  of  the  grant  that  the  premises  are  "  to 
remain  in  common  and  undivided,"  such  recital  would  not 
prevent  either  of  the  parties  from  having  partition  by  process 
of  law.^  But  a  condition  that  partition  should  never  be  made  of 
the  premises  granted  would  be  good."  By  the  statute  31  Henry 
VIII.,  none  but  tenants  of  the  freehold  who  have  estates  of 
inheritance  could  have  partition,  and  only  against  tenants  of 
the  freehold.  By  that  of  32  Henry  VIII.  tenants  for  life  or 
years  might  have  partition,  but  not  to  affect  the  reversioner 
or  remainder-man.^    Where,  during  the  pendency  of  proceed- 

1  Clark  V.  Parker,  106  Mass.  554. 

2  Ladd  V.  Perley,  18  N.  H.  396  ;  Abbott  v.  Berry,  46  N.  H.  369. 

3  Hassett  c.  Ridgley,  49  111.  201. 

*  Hoffman  v.  Stigers,  28  Iowa,  302. 

6  Fisher  v.  Dewerson,  3  Met.  544  ;  Hoyt  v.  KimbaU,  49  N.  H.  324. 
6  Spalding  V.  Woodward,  53  N.  H.  573. 
^  Hunt  V.  Wright,  47  N.  H.  396 ;  post,  3  vol.  *448. 

8  Co.  Lit.  167  ;   Mussey  v.  Sanborn,  15  Mass.  155 ;   Austin  v.  Rutland  Rail- 
road Co.,  45  Vt.  215. 


en.  XIII.  §  7.]  JOINT   ESTATES.  681 

ings  for  partition,  one  co-tenant  mortgaged  his  interest,  it  was 
held  that  the  mortgage  attached  to  his  property  as  soon  as  set 
out  to  the  mortgagor,  and  the  same  rule  would  apply  if  the 
couvej^ance  had  been  in  fee.^  Within  the  rule  above  stated, 
a  tenant  by  the  curtesy  initiate  may  have  partition.^ 

7.  There  are  some  general  rules  and  principles  applicable 
to  the  partition  of  estates  which  may  be  stated  in  anticipation 
of  the  statute  regulations  of  the  several  States,  which  will  be 
found  at  the  close  of  this  chapter.  A  petition  for  partition 
ordinarily  lies  only  in  favor  of  one  who  has  a  seisin  and  right 
of  immediate  possession,^  and  a  disseisin  or  adverse  possession 
negatives  the  community  of  possession  upon  which  the  right 
to  partition  depends.*  Partition  is  not  a  process  to  try  ques- 
tions of  title  if  the  petitioner  is  out  of  possession.  If  therefore 
another  than  the  petitioner  is  in  adverse  possession  for  how- 
ever short  a  time,  he  cannot  sustain  the  petition,  so  that  one 
co-tenant,  bj-  conveying  the  whole  estate  to  a  stranger,  may 
compel  his  co-tenant  to  regain  his  seisin  and  possession  before 
he  can  bring  process  for  partition.^  Thus,  one  claiming  a 
share  of  an  estate  for  an  alleged  breach  of  condition  cannot 
have  partition  until  he  shall  have  regained  his  seisin  by  an 
entry  upon  the  premises.^  A  judgment  for  partition,  when 
executed,  is  conclusiA^e  evidence  that  the  part  set  off  to  one 
petitioner  was  a  part  of  the  premises  held  by  the  parties  in 
common,  nor  would  it  be  open  to  a  former  co-tenant  to  set  up 


1  Westervelt  v.  Huff,  2  Sandf.  Ch.  98 ;  Baird  i'.  Corwin,  17  Penn.  St.  462. 

2  Eiker  v.  Darke,  4  Edw.  Ch.  668. 

3  Bonner  v.  Kennebeck  Purchase,  7  Mass.  475 ;  Rickard  v.  Eickard,  13  Pick. 
251 ;  Wells  v.  Prince,  9  Mass.  508 ;  Bradshaw  v.  Callaghan,  8  Johns.  558  ;  Brow- 
nell  V.  Brownell,  19  Wend.  367;  Barnard  v.  Pope,  14  Mass.  4.34;  Miller  v.  Den- 
nett, 6  N.  H.  109 ;  Call  v.  Barker,  12  Me.  320;  Stevens  v.  Enders,  1  Green  (N. 
J.),  271;  Whitton  v.  Whitton,  36  N.  H.  326;  Maxwell  v.  Maxwell,  8  Ired.  Eq. 
25  ;  Hunnewell  v.  Taylor,  6  Cush.  472 ;  Foust  v.  Moorman,  2  Carter  (lud.),  17  ; 
Tabler  v.  Wiseman,  2  Oliio  St.  207;  Lambert  v.  Blumenthal,.26  Mo.  471 ;  Brock 
V.  Eastman,  28  Vt.  658. 

*  Clapp  V-  Bromagham,  9  Cow.  5-30  ;  Thomas  i'.  Garvan,  4  Dev.  223.  But  in 
Massachusetts,  it  is  held  that  a  mere  technical  disseisin  does  not  affect  one  tenant 
in  common  maintaining  partition,  so  long  as  he  has  a  right  to  make  an  immedi- 
ate entry.     Marshall  v.  Crehore,  13  Met.  462;   Fisher  v.  Dewerson,  3  Met.  544. 

5  Florence  v.  Hopkins,  46  N.  Y.  184,  186. 

6  O'Dougherty  v.  Aldrich,  5  Denio,  385. 


682  LAW   OF   REAL   PROPERTY.  [BOOK   I. 

an  easement  in  the  part  thus  set  off,  upon  the  ground  that  he 
had  enjoyed  it  adversely  before  such  partition  was  made.^ 

8.  Partition,  consequently,  does  not  lie  by  tenants  in  com- 
mon in  reversion  or  remainder,^  though  in  New  York  it  may 
be  made  of  an  equitable  estate,^  and  of  a  vested  remainder  by 
a  statute  of  that  estate."^  An  outstanding  right  of  dower  in  a 
widow,  which  has  never  been  enforced,  is  no  objection  to  a 
valid  partition  among  those  having  the  inheritance.^  So  the 
owners  of  an  equity  of  redemption  may  have  partition,  if  the 
mortgagee  has  not  entered  and  taken  possession  under  his 
mortgage.^  But  one  co-tenant  cannot  have  partition  against 
another  who  holds  a  mortgage  upon  the  whole  estate,  although 
it  may  not  have  been  recorded.'^  But  if  partition  has  been 
made  while  there  is  an  outstanding  mortgage,  attachment,  or 
other  lien  upon  the  share  of  one  of  the  co-tenants,  it  will  con- 
clude the  one  having  such  lien,  and  the  same  will  attach  to 
the  part  set  off  to  the  one  against  whom  it  exists.^ 
[*429]  But  two  mortgagees  with  simultaneous  mortgages 
*  cannot  have  partition  until  after  foreclosure  of  their 
mortgages.^ 

8  a.  To  give  validity  and  effect  to  a  partition,  all  persons 
interested  should  be  made  parties  to  the  proceedings.  Such 
parties  and  none  others  would  be  bound  by  the  judgment. 
Thus,  before  the  statute  bound  mortgagees  and  attaching 
creditors  of  one  co-tenant  by  a  partition  to  which  he  is  party, 
and  gave  a  lien  upon  his  property  when  set  out  to  him,  such 

1  Edson  V.  Munsell,  12  Allen,  502. 

2  Culver  V.  Culver,  2  Root,  278  ;  Ziegler  v.  Grim,  6  Watts,  106  ;  Hodgkinson, 
Petitioner,  12  Pick.  374 ;  Brown  v.  Brown,  8  N.  H.  93 ;  Robertson  v.  Robertson, 
2  Swan,  197 ;  Tabler  v.  Wiseman,  2  Ohio  St.  207  ;  Adam  v.  Ames  Iron  Co.,  24 
Conn.  2.30 ;  Nichols  v.  Nichols,  28  Vt.  228 ;  Hunnewell  v.  Taylor,  6  Cusli.  472 ; 
Johnson  v.  Johnson,  7  Allen,  198.  , 

3  Hitchcock  V.  Skinner,  1  Hoffm.  Ch.  21. 

*  Bhikeley  v.  Colder,  15  N.  Y.  617.  And  the  same  is  true  in  Illinois.  Sco- 
Tille  V.  Hiliiard,  48  111.  4-53;  Hilliard  v.  Scoville,  52  111.  449. 

6  Bradshaw  v.  Callaghan,  8  Johns.  558;  Motley  v.  Blake,  12  Mass.  280. 

6  Call  V.  Barker,  12  Me.  320. 

7  Blodgett  V.  Hildreth,  8  Allen,  187 ;  Fuller  v.  Bradley,  23  Pick.  9. 

8  Mass.  Gen.  Stat.  c.  136,  §  43. 

9  Ewer  V.  Hobbs,  5  Met.  1.  But  it  was  held  otherwise  in  Vermont.  Munroe 
V.  Walbridge,  2  Aik.  410. 


CH.  Xin.  §  7.]  JOINT    ESTATES.  683 

mortgagee  or  attaching  creditor  was  not  bound  by  such  par- 
tition commenced  and  perfected  after  the  lien  thus  created 
was  instituted,  unless  he  was  made  a  party  to  the  proceedings.^ 
And  a  partition,  where  one  of  the  co-tenants  is  a  disseisor,  or 
wrongfully  claims  a  share  of  the  estate,  will  not  affect  the 
rights  of  the  disseisee,  although  such  co-tenant  is  in  j)Osses- 
sion  of  the  premises,  but  when  the  disseisee  regains  his  seisin 
he  will  be  tenant  in  common  with  the  rightful  co-tenant.^ 

9.  It  has  been  held  in  Massachusetts,  that  if  the  common 
estate  consists  of  several  parcels,  it  is  not  required  in  making 
partition  that  each  parcel  should  be  divided  ;  the  entire  sliare 
of  one  of  the  co-tenants  may  be  set  off  in  one  of  the  parcels, 
if  the  commissioners  see  fit.^  The  same  rule  applies  in  de- 
scribing what  is  set  off  to  a  co-tenant  upon  partition  made,  as 
in  making  a  deed  from  one  to  another.  Thus  the  assignment 
of  a  mill  to  one  carries  with  it  the  land  on  which  it  stands, 
and  the  appurtenant  easements  necessary  to  its  full  enjoy- 
ment.* 

10.  In  Vermont,  the  court  refused  to  order  a  partition  of  an 
ore  bed,  or  of  a  mill,  mill-pond,  and  mill-yard,  which  formed 
one  estate,  because  they  were  not  subjects  of  j^artition.^  And 
a  partition  made  in  New  Hampshire,  of  a  mill,  by  assigning  to 
the  co-tenants  the  alternate  use  of  it  for  specified  periods,  was 
set  aside  as  being  unauthorized  by  law  ;  ^  and  such  was  held  to 
be  the  case  in  Massachusetts,  until  a  statute  made  provision 
for  such  a  partition.''  The  courts  of  California  do  not  regar 
the  water  flowing  in  a  ditch  designed  for  raining  purposes  a 

1  Colton  V.  Smith,  11  Pick.  311  ;   Munroe  y.  Luke,  19  Pick.  89  ;    Gen.  Sta  . 
c.  136,  §  43;  Cook  v.  Allen,  2  Mass.  462.     See  Purvis  v.  Wilson,  5  Jones  (Law 
22;    Kester  v.   Stark,   19  111.328;    Burhans  v.  Burhans,  2  Barb.  Ch.  398;    E 
Uprey  v.  De  Uprey,  27  Cal.  332  ;   Harlan  v.  Stout,  22  Ind.  488 ;   Ross  v.  Cobb 
48  111.  114;  Kilgourv.  Crawford,  51  111.  249. 

2  Dorn  V.  Beasly,  7  Rich.  Eq.  84 ;  Foxcroft  v.  Barnes,  29  Me.  125 ;  Mass. 
Gen.  Stat.  c.  136,  §  32  ;  Foster  v.  Abbot,  8  Met.  596;  Argyle  v.  Dwinel,  29  Me. 
29. 

3  Hagar  v.  Wiswall,  10  Pick.  152. 

4  Munroe  v.  Stickney,  48  Me.  458. 

6  Conant  v.  Smith,  1  Aik.  67  ;  Brown  v.  Turner,  Id.  350. 
e  Crowell  v.  Woodbury,  52  N.  H.  613. 

7  Miller  v.  Miller,  13  Pick.  237;  Gen.  Stat.  c.  136,  §  77;  De  Witt  v.  Harvey, 
4  Gray,  486. 


684  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

a  subject  of  partition  by  any  mechanical  division.  And  the 
only  Avay  in  which  the  interests  of  such  common  owners  can 
be  divided  is  by  making  sale  of  the  same.^  But  in  New  York, 
where  there  Avere  several  mills  upon  the  same  stream,  parti- 
tion was  made  by  assigning  a  mill  and  mill-dam  to  one,  with  a 
privilege  of  flowing  the  land  of  the  other  above  him,  for  the 
purpose  of  raising  the  necessary  head  of  water.^  In  a  case  in 
Maine,  where  the  common  property  was  a  cotton  factory,  the 
commissioners  reported  that  it  could  not  be  divided,  to  be 
used  for  the  purposes  for  which  it  was  constructed,  but  might 
be  for  other  uses,  and  the  court  required  it  to  be  done.^  In 
some  of  the  States,  if  the  property  is  not  susceptible  of  parti- 
tion, the  court  may  order  it  sold,  and  the  proceeds  divided.* 
In  Massachusetts,  if  the  premises  cannot  be  divided,  they  may 
all  be  set  to  one,  and  he  be  required  to  pay  the  estimated 
value  of  his  co-tenant's  share  to  him.^ 

11.  In  most  of  the  States,  in  addition  to  the  modes  of  effect- 
ing partition  above  mentioned,  courts  of  probate  jurisdiction 
have  the  power  to  cause  partition  to  be  made  among  the  heirs 
or  devisees  of  an  estate  which  has  come  within  the  cognizance 
of  the  court.''  In  such  case  no  deed  of  release  of  their  several 
proportions  by  one  heir  or  devisee  to  another  is  required,  as 
the  adjudication  of  the  court,  accepting  and  affirming  the 
doings  of  the  commissioners  appointed  to  make  the  partition, 
is  binding  and  conclusive.   The  partition  must  be  of  the  entire 

estate  and  not  of  a  part  only, '^  nor  can  it  affect  an 
[*130]   alienee  of  one  of  the  heirs  *  or  devisees  who  acquires 

his  title  before  proceedings  are  commenced,  as  such 


1  McGillivray  v.  Evans,  27  Cal.  96. 

2  Hills  V.  Dey,  U  Wend.  204.  See,  as  to  special  partition  of  mines  and  other 
indivisible  hereditaments  by  means  of  resort  to  equity,  Adam  v.  Briggs  Iron 
Co.,  7  Cush.  361 ;  Tyler  v.  Wilkinson,  4  Mason,  397;  Belknap  v.  Trimble,  8 
Paige,  Ch.  577  ;  De  Witt  v.  Harvey,  4  Gray,  499 ;  Story,  Eq.  Jur.  §  656.  See 
also,  as  to  dividing  water-power  in  New  Hampshire,  Morrill  v.  Morrill,  5  N.  H 
134 ;  and  Me.  Stat.  1821,  c.  37,  §  2 ;  Hanson  v.  Willard,  12  Me.  142. 

3  Wood  V.  Little,  35  Me.  107. 

<  Royston  i'.  Royston,  13  Ga.  425 ;   Higginbottom  v.  Short,  25  Miss  160. 

5  King  V.  Reed,  11  Gray,  490. 

e  Walton  v.  Willis,  1  Dall.  265 ;    Witham  v.  Cutts,  4  Greenl.  31. 

^  Arms  V.  Lyman,  5  Pick.  210. 


CH.  XIII.  §  7.]  JOINT   ESTATES.  685 

alienee  is  not  a  party  to  the  proceedings  of  settling  the  estate 
in  the  probate  court.^ 

12.  No  parol  partition  can  be  effectual  unless  accompanied 
by  deeds  from  one  co-tenant  to  the  other,  inasmuch  as  the 
statute  of  frauds  applies  to  such  cases.^  But  where  two  ten- 
ants in  common  made  parol  partition  of  land,  it  was  held  to 
be  good  and  effectual  against  creditors  and  purchasers  if  it  is 
followed  by  separate  open  and  notorious  possession.  And 
such  possession  would  be  notice  of  an  existing  deed,  though  it 
had  not  been  recorded.^  But  in  one  case  in  New  York,  the 
court  gave  practical  effect  to  a  partition  made  hj  co-tenants 
by  parol  between  themselves,  which  was  followed  by  a  sepa- 
rate occupation  by  each  tenant  for  several,  though  less  than 
twenty,  years.  One  of  these  having  made  expensive  improve- 
ments upon  the  part  set  to  him,  and  another  of  the  original 
co-tenants  having  sought  to  enforce  a  new  partition,  the  court 
refused  to  allow  this  partition  to  be  disturbed.*  But  in  New 
Hampshire  and  Massachusetts  there  is  a  class  of  quasi  corpora- 
tions known  as  proprietors  of  common  lands,  which  may  make 
partition  of  their  lands  by  a  simple  vote  properly  made  and 
recorded  without  any  deed.^ 

13.  But  although  a  parol  partition  between  tenants  in  com- 
mon maj'  not,  for  the  reasons  stated,  affect  the  legal  title  of 
the  several  owners,  where  it  is  followed  by  a  possession  in 
conformity  with  such  partition  it  will  so  far  bind  the  posses- 
sion as  to  give  to  each  co-tenant  the  rights  and  incidents  of 
an  exclusive  possession  of  his  purparty.^  Exclusive  posses- 
sion b}^  one  tqnant  in  common  of  a  particular  part  of  the 
estate,  accompanied  by  a  denial  of  his  co-tenant's  right  of 


1  Pond  V.  Pond,  13  Mass.  413;  Cook  v.  Davenport,  17  Mass.  345. 

2  Porter  v.  Hill,  9  Mass.  34;  Porter  v.  Perkins,  5  Mass.  232;  Snively  v.  Luce, 
1  Watts,  69;  Gratz  v.  Gratz,  4  Rawle,  411;  Gardiner  Mg.  Co.  v.  Heald,  5  Me. 
384 ;  Dow  v.  Jewell,  18  N.  H.  354. 

3  Manley  v.  Pettee,  38  111.  128-132.  *  Wood  v.  Fleet,  36  N.  Y,  501. 

5  Coburn  v.  Ellenwood,  4  N.  H.*99  ;  Folger  v.  Mitchell,  3  Pick.  396;  Adams 
V.  Frothinghani,  8  Mass.  352 ;  Corbett  v.  Norcross,  35  N.  H.  99 ;  Kothwell  v. 
Dewees,  2  Black,  613. 

f  Jackson  v.  Harder,  4  Johns.  202,  212  ;  Jackson  v.  Vosburgh,  9  Johns.  276; 
Slice  V.  Derrick,  2  Rich.  627,  629  ;  Piatt  v.  Hubbel,  5  Ohio,  243;  Corbin  v.  Jack- 
son, 14  Wend.  619;  Keay  v.  Goodwin,  10  Mass.  1,  3. 


686  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

possession  in  the  part  tlms  occupied,  may  grow  into  a  legal 
presumption  of  partition  having  been  macle.^  And  in  some 
cases  the  law  Avill  infer  this  from  the  mere  sole  and  exclusive 
occupation  of  such  part,  if  continued  a  sufficient  length  of 
time,  —  in  Pennsylvania  twenty-one  years,  and  in  Kentucky 
twenty  years. ^ 

14.  Although  each  of  several  tenants  in  common  has  a 
several  freehold  in  his  share  or  part  of  the  common  inherit- 
ance, yet  the  interests  of  all  are  so  far  identical,  and  each  is 
so  far  regarded  as  acting  for  the  others  in  regard  to  the  estate, 
that,  if  there  were  an  outstanding  adverse  title  to  any  part  of 
the  estate,  no  one  of  them,  before  partition  made,  could,  by 
purchasing  it  in,  use  it  against  his  co-tenants  if  they  were 
willing  to  contribute  pro  rata  towards  reimbursing  him  the 
moneys  he  may  have  had  to  pay  to  acquire  such  title.  Equity 
would,  in  such  case,  restrain  the  use  of  such  title  adversely  to 
his  co-tenants.  In  making  such  purchase,  he  would  be  con- 
sidered as  acting  as  trustee  for  his  co-tenants,  until  they  should 
have  disaffirmed  the  presumption  by  refusing  to  contribute.^ 
The  rule  of  equity  is  thus  stated  in  Britton  v.  Handy:  "  Equity 
prohibits  a  purchase  by  parties  placed  in  the  situation  of  trust 
or  confidence  with  respect  to  the  subject  of  the  purchase,  — 
no  party  can  be  permitted  to  purchase  for  his  own  benefit  or 
interest,  where  he  has  a  duty  to  perform  which  is  inconsistent 
with  the  character  of  the  purchase  ;  and  this  has  been  applied 
to  purchases  of  outstanding  titles  and  incumbrances  by  joint- 
tenants,  and,  in  some  instances,  by   tenants  in  common."* 

1  Lloyd  V.  Gordon,  2  Har.  &  McH.  254. 

2  Gregg  V.  Blackmore,  10  Watts,  192;   Drane  v.  Gregory,  3  B.  Mon.  619. 

8  Venable  v.  Beauchamp,  3  Dana,  321 ;  Lee  v.  Fox,  6  Dana,  171 ;  Thurston 
V.  Masterson,  9  Dana,  228 ;  O wings  v.  M'Clain,  1  A.  K.  Marsh.  230;  Van  Home 
V.  Fonda,  5  Johns.  Ch.  407  ;  4  Kent,  Com.  371 ;  Titsworth  v.  Stout,  49  III.  78,  80. 

*  Britton  v.  Handy,  20  Ark.  381,  402.  See  alsp  Jones  ).'.  Stanton,  11  Mo.  433; 
Flagg  V.  Mann,  2  Sumn.  490;  Weaver  v.  Wible,  25  Penn.  St.  270;  Tisdale  v. 
Tisdale,  2  Sneed,  596  ;  Lloyd  ;;.  Lynch,  28  Penn.  St.  419;  Picot  v.  Page,  26  Mo. 
398;  Gossoni  v.  Donaldson,  18  B.  Mon.  2-30;  ante,  p.  *410 ;  Sullivan  v.  McLen- 
ans,  2  Iowa,  442.  But  see  Wells  v.  Chapman,  4  Sandf.  Ch.  312.  The  general 
doctrine  above  stated  is  fully  sustained  by  tlie  U.  S.  Court.  Rothwell  v.  Dewees, 
2  Black,  613,  citing  Farmer  v.  Samuels,  4  L'ttell,  187 ;  Lee  v.  Fox,  6  Dana,  170 ; 
Butler  V.  Porter,  13  Mich.  292;  Downer  v.  Smith,  38  Vt.  464;  Titsworth  v. 
Stout,  49  111.  80. 


CH.  XIII.  §  7.]  JOINT   ESTATES.  G87 

And  it  has  accordingly  been  held  that  one  tenant  cannot  gain 
any  advantage  against  his  co-tenant  by  bidding  in  the  com- 
mon property,  if  sold  for  taxes  ;  ^  though  it  has  been  said 
tftat,  after  the  period  of  redemption  from  such  sale  has  ex- 
pired, either  of  the  co-tenants  may  purchase  the  estate  of  the 
one  who  may  have  bid  it  off,  without  thereby  creating  any 
rights  in  his  co-tenant.^ 

*15.  But  how  far  this  principle  shall  be  applied  [*431] 
after  partition  made,  depends  upon  the  circumstances 
of  the  cases  as  they  arise.  Thus,  supposing  partition  to  be 
made  by  mutual  deeds  of  release  without  fraud,  and  the 
title  to  some  part  of  the  premises  fails,  the  loss,  as  a  general 
proposition,  falls  on  the  party  whose  property  is  immediately 
affected  by  it.^ 

16.  But  by  the  statute  31  Henry  VIII.  it  was  expressly 
provided  that  tenants  in  common,  between  whom  partition  has 
been  made  by  a  writ  of  partition,  may  .have  the  aid  of  each 
other  "  to  deraign  the  warranty  "  as  to  the  estate  ;  that  is,  to 
avail  himself  of  the  benefit  of  the  general  warranty  which  had 
attached  to  the  estate,  by  rendering  it  effectual  for  the  protec- 
tion of,  or  compensation  for,  the  land  which  should  be  ad- 
versely demanded  or  recovered.'^  This  proposition  may 
perhaps  be  made  a  little  more  intelligible  by  the  analogy  there 
is  between  the  case  of  such  tenant  in  common,  and  that  of  a 
tenant  having  the  right  to  call  "  in  aid  "  another  to  protect 
his  title.  Thus,  for  instance,  if  a  tenant  for  life  is  sued  in  a 
writ  of  entry  by  some  one  claiming  the  inheritance,  as  he  is 
not  supposed  to  be  cognizant  of  the  full  title,  he  properly 

1  Page  V.  Webster,  8  Midi.  263 ;  Lloyd  v.  Lynch,  28  Penn.  St.  419 ;  Hussey 
V.  Blood,  29  Penn.  St.  319  ;  Morgan  v.  Herrick,  21  111.  481. 

2  Eeinboth  v.  Zerbe  Run  Improvement  Co.,  29  Penn.  St.  139.  See  also  Wat- 
kins  V.  Eaton,  30  Me.  529. 

3  Beardsley  v.  Knight,  10  Vt.  185 ;   Weiser  v.  Weiser,  5  Watts,  279. 

*  Cowel,  Interp.  Verb.  "  Deraign,"  Morrice's  ease,  6  Rep.  12 ;  Allnatt,  Part. 
161, 163;  6  Dane,  Abr.  .5,  where  it  is  said  the  Stat.  31  Henry  VIII.  is  a  part  of 
Massachusetts'  common  law  ;  and  in  Tennessee,  8  Humph.  285.  "  De  arraign," 
applied  to  hindering  or  preventing  battle  when  tenant  waged  it,  is  said  to  be  de- 
rived from  '•'  derismer,"  signifying  to  deny  or  refuse.  Barring.  Stat.  296,  and  note. 
In  this  sense  it  would  seem  to  imply  the  making  use  of  the  warranty  by  way  of 
estoppel,  by  calling  in  a  party  to  whom  it  applied.  But  in  a  book  called  "  Law 
French  and  Latin  Dictionary,"  published  in  1701,  "by  F.  O."  one  definition  of 
"  deraign  "  is  "  to  prove  or  make  good."     "  A  deraignment  or  proof." 


y 


688  LAW  OP  REAL  PROPERTY.  [BOOK  I. 

calls  upon  the  reversioner  to  aid  liim  in  making  defence.  So 
if  one  has  purchased  the  inheritance,  and  his  vendor  has  war- 
ranted the  title,  and  he  is  sued,  in  such  an  action  he  may  call 
upon,  or,  in  technical  terms,  "  vouch  in,"  his  warrantor  to  de- 
fend the  title. -^  But  as  tenants  in  common,  after  partition 
made,  are  not  considered  as  holding  under  each  other,  so  that, 
if  one  is  sued  in  respect  to  his  title  to  his  property,  he  can 
call  the  others  in  aid,  or  vouch  them  in  to  defend  as  warran- 
tors, they  are  all  considered  as  holding  under  the  original 
general  or  paramount  warrantor.  And  when  either  of  them 
was  sued  in  respect  to  his  title,  he  might  require  the  aid  of 
his  former  co-tenants  in  calling  upon  their  general  or  para- 
mount warrantor  to  make  good  his  warranty,  or  make  com- 
pensation.- 
[*432]  *  17.  Applying  this  common-law  duty  of  co-tenants 
to  aid  each  other  in  protecting  what  had  been  a  com- 
mon estate,  even  after  partition  made,  the  law  holds  it  incom- 
patible with  their  duty  towards  each  other  for  either  to  become 
the  demandant  in  a  suit  to  recover  any  portion  of  the  land  by 
a  paramount  title,  and  thus  to  place  himself  in  antagonism  to 
his  co-tenants  and  their  common  warrantor.^ 

18.  And  where  partition  has  been  made  bylaw,  each  parti- 
tioner  becomes  a  warrantor  to  all  the  others  to  the  extent  of 
his  share,  so  long  as  the  privity  of  estate  continues  between 
them.  And  inasmuch  as  a  warrantor  cannot  claim  against  his 
own  warranty,  no  tenant  after  partition  made  can  set  up  an 
adverse  title  to  the  portion  of  another,  for  the  purpose  of 
ousting  him  from  the  part  which  has  been  parted  off  to  him.^ 
When  partition  has  been  made,  the  tenant,  to  whom  a  part 
has  been  set  out,  is  regarded  in  law  as  a  purchaser  for  value 
of  the  same.^ 

1  Stearns,  Real  Act.  99,  131 ;  Booth,  Real  Act.  60. 

2  Morrice's  case,  6  Rep.  12 ;  Allnatt,  Part.  156-164 ;  1  Prest.  Abs.  304 ;  Saw- 
yers j;.  Cater,  8  Humph.  256;  Morris  v.  Harris,  9  Gill,  19;  Dugan  v.  Hollins,  4 
Md.  Ch.  139  ;  Co.  Lit.  174  a.  The  reader,  however,  should  bear  in  mind  that 
the  warranty  here  spoken  of  is  the  ancient  warranty  of  the  common  law,  which 
never  practically  obtained  in  the  United  States.     4  Kent,  Com.  470. 

3  Venable  v.  Beauchamp,  3  Dana,  326. 

*  Co.  Lit.  174  a;  Com.  Dig.  Parcener,  C.  13;  Venable  v.  Beauchamp,  3 
Dana,  326. 

5  Campan  v.  Barnard,  25  Mich.  382. 


CH.  XIII.  §  7.]  JOINT   ESTATES.  689 

I 

19.  If,  after  the  partition  has  been  made,  one  of  the  parties 
is  evicted  of  his  property  by  a  j)aramount  title,  the  partition  as 
to  him  is  defeated  at  his  election,  and  he  may  enter  upon  the 
shares  of  the  others  as  if  none  had  been  made,  and  have  a 
new  partition  of  the  premises.  But  this  right  does  not  extend 
to  the  alienee  of  one  of  these  tenants,  because  by  such  aliena- 
tion the  privity  of  estate  between  them  and  the  holder  of  his 
share  is  destroyed.  Nor  can  the  alienee  himself  enter  upon 
the  shares  of  the  other  tenants  in  such  a  case  and  defeat  the 
partition.^  And  if,  in  the  case  supposed,  one  co-tenant  after 
partition  is  evicted  by  paramount  title,  he  is  not  confined  for 
his  remedy  to  a  new  partition,  but  may  rely  upon  his  warranty 
and  recover  his  recompense  for  his  loss  by  an  action  thereon 
against  his  former  co-tenants.*  ^ 

*  Note.  —  In  some  of  the  States,  as  before  stated,  joint-tenants  and 
tenants  *  in  common  are  prohibited  by  statute  from  committing  waste  [*4:33] 
upon  the  common  inheritance.  In  Massachusetts  and  Maine,  if  a  tenant 
commits  waste  without  first  giving  thirty  days'  prior  notice  to  his  co-tenants  in 
writing,  lie  forfeits  three  times  tlie  amount  of  the  damages  that  shall  be  occa- 
sioned thereby  in  a  suit  by  one  or  more  of  the  co-tenants.  Mass.  Gen.  Stat. 
1860,  c.  138,  §  7  ;  Maine  Rev.  Stat.  1871,  c.  95,  §  5.  In  Rhode  Island,  if  a  tenant 
commit  waste  without  the  consent  of  his  co-tenants,  he  forfeits  double  damages 
for  the  waste  done.  Gen.  Stat.  c.  220,  §  2.  In  New  York,  the  co-tenant  in  such 
a  case  may  take  judgment  for  treble  damages,  or  he  may  have  partition  of  the 
estate  at  his  election,  and  the  amount  of  such  damage  deducted  from  the  defend- 
ant's share  and  added  to  his  own.  And  the  law  is  the  same  in  Neiv  Jersey,  ex 
cept  that  single  damages  only  can  be  recovered.  In  Ohio,  one  parcener  may 
have  an  action  of  waste  in  a  civil  form  against  his  coparceners.  N.  Y.  Rev. 
Stat.,  vol.  2,  p.  346 ;  Nixon,  Dig.  of  N.  J.  Stat.  1868,  p.  1022 ;  Ohio  Rev.  Stat. 
1860,  c.  81,  §  15.  In  Missouri,  a  tenant  in  common  is  liable  to  his  co-tenant  in 
an  action  at  law  for  doing  waste  upon  the  premises,  and  if  wantonly  done  he 
may  recover  treble  damages.  Stat.  1872,  vol.  2,  c.  85,  §  46.  In  Virginia,  the 
law  is  the  same  in  such  cases  as  in  Missouri.  Code,  1873,  c.  183,  §  2.  So  in 
Kentucky,  Gen.  Stat.  1873,  c.  66,  art.  3,  §  5.  In  Minnesota,  the  tenant  committing 
waste  is  liable  to  forfeit  his  estate  and  pay  treble  damages  to  his  co-tenant  in 
certain  cases.  Stat.  1873,  c.  43,  §  27.  And  a  similar  law  prevails  in  Iowa  and 
Indiana.  Iowa,  Code,  1873,  Tit.  20,  §  3832 ;  Ind.  Rev.  Stat.  1852,  vol.  2,  p.  174. 
In  Michigan  and  Wisconsin,  such  tenant  may  have  an  action  on  the  case  for  the 
waste,  and  recover  double  damages.  Mich.  Comp.  Laws,  1871,  vol.  2,  c.  197,  §  3 ; 
Wis.  Rev.  Stat.  1858,  c.  143.  In  California,  he  may  recover  treble  damages  in 
an  action  for  such  waste.     "Wood,  Dig.  1858. 

1  Co.  Lit.  173  b;    Id.  174  a;    Cora.  Dig.  Parcener,  C.  13;   Feather  v.  Stro- 
hoecker,  3  Penn.  505. 

2  Com.  Dig.  Parcener,  C.  14. 

VOL.  1.  44 


690  LAW  OF  REAL  PROPERTY.  |  BOOK  L 

Note.  —  In  a  large  majority  of  the  States,  partition  may  be  made  by  a  sum- 
mary and  convenien    method  of  petition  to  the  courts  of  common  law. 

In  Massacfiiisetls,  one  or  more  of  the  persons  holding  lands  as  joint-tenants,  or 
tenants  in  common,  may  apply  by  petition  to  the  Superior  or  Supreme  Court, 
held  for  the  county  in  which  the  lands  he,  for  a  partition  of  the  same.  The  pe- 
tition may  be  maintained  by  any  person  who  has  an  estate  in  possession,  but 
not  by  one  who  has  only  a  remainder  or  reversion  ;  nor  by  any  tenant  for  years, 
of  whose  term  less  than  twenty  years  remain  unexpired,  as  against  a  tenant 
of  the  freehold.  Tenants  for  j^ears,  however,  may  have  partition  between  them- 
selves, though  such  partition  shall  not  affect  the  premises  when  they  revert  to 
the  respective  landlords  or  reversioners.  The  petition  sets  forth  the  rights  and 
titles  of  all  persons  interested  who  would  be  bound  by  the  partition,  whether  they 
have  an  estate  of  inheritance  for  life  or  years,  in  possession,  remainder,  or  rever- 
sion, and  whether  vested  or  contingent ;  and  if  the  petitioner  holds  an  estate  for 
life  or  3'ears,  the  person  entitled  to  the  remainder  or  reversion  is  a  party  inter- 
ested, and  entitled  to  notice.  Parties  within  the  State  are  notified  by  serving 
upon  them  an  attested  copy  of  the  petition  and  of  the  summons ;  and 
[*434]  parties  absent  from  the  State,  or  unknown,  are  notified  by  public  *  ad- 
vertisement, and  the  court  may  allow  them  time  to  appear  and  answer. 
"Where  some  of  the  parties  are  infants  or  insane  persons,  the  court  may  assign 
guardians  to  such.  If  a  person  not  named  in  the  petition  appears  and  defends, 
the  petitioner  may  deny  his  title.  If  it  appears  that  the  petitioner  is  entitled  to 
partition,  an  interlocutory  judgment  that  partition  be  made  is  awarded,  and 
commissioners  are  appointed  to  make  it.  If  there  are  several  petitioners,  they 
may,  at  their  election,  have  their  shares  set  off  together  or  in  severalty.  If  a 
division  cannot  be  made  without  damage  to  the  owners,  the  whole  estate,  or  the 
part  incapable  of  division,  may  be  set  off  to  any  one  who  will  accept  it,  he  pay- 
ing a  sum  of  money  to  make  the  partition  just  and  equal;  or  the  exclusive 
occupancy  and  enjoyment  of  the  whole  or  part  may  be  assigned  to  each  of  the 
parties  alternately  for  certain  specified  times,  in  proportion  to  their  respective 
interests.  In  such  case  the  occupant  for  the  time  being  is  liable  to  his  co-tenants 
for  any  injury  to  the  premises  occasioned  by  his  misconduct,  as  if  a  tenant  for 
years  without  express  covenants  ;  and  like  such  tenant  he  may  recover  damages 
for  an  injury  by  a  stranger;  and  he  and  the  other  tenants  may  recover  jointly 
for  any  further  damages  in  like  manner  as  lessors.  Upon  the  return  of  the  com- 
missioners, the  final  judgment  confirming  their  report  is  conclusive  as  to  the 
rights  of  property,  and  possession  of  parties  and  privies  to  the  judgment,  includ- 
ing all  who  might  liave  appeared  and  answered,  except  that  an  absent  part-owner 
may  apply  for  a  new  partition  within  three  years.  A  stranger  claiming  in  sev- 
eralty is  not  bound  by  a  judgment  of  partition  ;  but  if  one  who  has  not  appeared 
and  answered,  claims  the  share  assigned  to  or  left  for  any  of  the  supposed  part- 
owners,  he  is  bound  by  the  judgment,  so  far  as  it  respects  the  partition  and  assign- 
ment of  tbesliares,  like  a  party  to  the  suit ;  but  he  may  bring  his  action  for  the 
share  claimed  by  him  against  the  person  to  whom  it  was  assigned  or  left.  In  case 
two  or  more  respondents  claim  the  same  share,  tlieir  respective  claims  may  be 
left  undecided,  except  so  far  as  to  determine  which  shall  be  admitted  to  appear ; 
and  the  share  so  claimed  is  left  for  wliichever  party  is  proved  to  be  entitled  to 
it  in  a  suit  between  themselves  subsequent  to  the  partition.  If  it  is  decided  in 
the  suit  for  partition  that  either  of  the  respondents  is  not  entitled  to  the  share 
that  he  claims,  he  is  concluded  by  the  judgment,  so  far  as  it  respects  the  parti- 


CH.  XIII.  §  7.]  JOINT    ESTATES.  691 

tion  and  assignment,  but  he  may  bring  an  action  against  the  other  claimant  for 
his  share.  If  any  person  who  has  not  appeared  and  answered,  claims  an  addi- 
tional sliare  as  part-owner,  he  is  bound  by  the  partition,  but  may  recover  against 
eacli  of  the  other  tenants  his  proportion  thereof.  In  case  a  share  is  left  or 
assigned  to  a  part-owner  who  is  dead,  his  heir  or  devisee  may  claim  the  origi- 
nal sh.are,  though  made  a  party  to  the  petition.  A  party  evicted  of  his  share 
by  paramount  title  may  have  a  new  partition  of  the  residue.  A  person  hav- 
ing a  mortgage  or  other  lien  upon  the  share  of  a  part-owner  is  concluded  by 
the  partition;  but  his  lien  remains  in  full  force  upon  the  part  assigned  or 
left  to  such  part-owner.  If  the  petitioner  recovers  judgment  in  any  process 
of  partition  in  which  the  respondent  claims  any  part  of  the  premises  as  his 
own  estate  in  fee,  and  it  is  proved  that  the  latter  held  the  same  under  a 
title  which  he  believed  to  be  good,  *  he  is  entitled  to  betterments  as  [*i35] 
provided  for  tenants  in  real  actions,  and  the  petitioner  must  pay  for  them 
after  deducting  the  rents,  profits,  and  other  damages  for  which  the  respondent 
is  chargeable.  So  a  party  holding  under  partition  is  entitled  to  betterments  in 
case  of  eviction.  If,  after  a  first  partition,  improvements  have  been  made  on  any 
part  of  the  premises  which  by  the  new  partition  is  taken  from  the  share  of  the 
party  who  made  them,  he  is  entitled  to  contribution,  to  be  awarded  by  the  com- 
missioners. A  lease  of  the  whole  or  a  part  of  the  estate  to  be  divided  does  not 
prevent  or  invalidate  the  partition ;  nor  is  it  prevented  or  invalidated  by  any  of 
the  tenants  being  trustee,  attorney,  or  guardian  of  a  co-tenant.  In  case  of  re- 
mainders or  estates  devised  or  limited  to,  or  in  trust  for,  persons  not  in  being  at 
the  time  of  the  application  for  partition,  upon  notice  to  the  persons  who  may  be 
parents  of  such  persons,  the  court  may  appoint  a  person  to  appear  as  the  next 
friend  of  such  persons.  The  return  of  tlie  commissioners  is  to  be  recorded  in 
the  registry  of  deeds  for  the  county  where  the  laud  lies.  Partition  may  also  be 
compelled  by  writ  of  partition  at  the  common  law.  Gen.  Stat.  1860,  c.  136,  §  1. 
By  more  recent  statutes,  courts  of  probate  may  make  partition  of  lands  held  in 
common  by  joint-tenants  or  tenants  in  common,  where  their  respective  shares 
are  not  in  dispute,  in  the  same  way  as  such  partition  might  be  made  among 
heirs  or  devisees  of  an  estate  of  a  deceased  person.  And  if  the  lands  of  which 
partition  is  to  be  made  cannot  be  advantageously  divided,  the  court  may  author- 
ize the  commissioners  to  make  sale  and  conveyance  of  the  whole  or  any  part  of 
the  same,  and  the  proceeds  to  be  distributed  in  such  a  manner  as  to  make  the 
partition  equal.     Stat.  1869,  c.  121;  1871,  c.  111. 

In  Maine,  the  petition  is  addressed  to  the  Supreme  Court  held  for  the  county 
where  the  land  lies,  and  the  proceedings  under  the  petition  are,  in  all  the  more 
important  features,  similar  to  those  in  Massachusetts,  as  described  above.  A 
writ  of  partition  may  also  be  had  at  common  law.  Rev.  Stat.  1857,  c.  88.  And 
see  Acts '1860,  c.  180 ;  Rev.  Stat.  1871,  c.  88. 

In  New  Hampshire,  one  or  more  persons  having  or  holding  real  estate  with 
others  may  have  partition  by  applying  by  petition  to  the  Superior  Court  in  the 
county  where  the  land  lies.  Issues  of  fiict  may  be  niade  and  tried  as  on  a  writ  at 
common  law.  Gen.  Stat.  1867,  c.  228.  The  partition  is  made  by  a  committee  of 
three  residents  of  the  county.  It  is  provided  that  no  partition  shall  be  avoided 
by  any  conveyance  after  the  entry  of  the  petition,  nor  unless  recorded  before 
such  entry  ;  nor  by  any  mortgage  or  other  lien  upon  the  estate.  If  any  share  be 
set  off  to  any  person  other  than  the  legal  owner,  such  share  enures  to  the 
benefit  of  tiie  legal  owner.     If  there  is  no  dispute  about  the  title,  the  petition 


692  LAW   OF   REAL    PROPERTY.  [BOOK   L 

niiiy  he  directed  to  the  judge  of  probate.  In  other  respects  the  mode  of  pro- 
cedure is  similar  to  that  in  Massachusetts.  Comp.  Stat.  1853,  c.  219  ;  Gen.  Stat. 
18G7,  c.  228. 

In  Vermont,  the  petition  is  made  to  the  county  court,  and  tliree  commissioners 
from  tlie  county  are  appointed  to  make  the  partition.  If  tlie  land  cannot  be  con- 
veniently divided,  and  no  one  of  the  parties  interested  will  consent  to  raise 
an  assijjtnncnt  of  it,  and  pay  such  sum  as  the  commissioners  direct,  the  court 
will  order  the  commissioners  to  sell  such  estate,  and  execute  convej'ances  which 
bind  the  owners,  and  all  persons  clainiin<j  under  them.  No  commissioner  can 
become  a  purchaser  at  such  sale.  No  partition  is  avoided  by  any  conveyance 
by  a  part-owner  previous  to  the  service  of  the  petition,  unless  it  be  recorded,  or 
it  appear  that  the  petitioner  had  knowledge  of  such  conveyance.  If  any  share 
is  set  off  to  any  person  other  than  the  legal  owner,  such  share  enures  to  the 
benefit  of  the  legal  owner.  A  party  without  the  State  who  had  not  a  personal 
notice  may  avoid  the  partition  within  three  years  for  sufficient  cause, 
[*436]  when  a  new  partition  is  ordered.  Improvements  *made  after  the  first 
partition  are  allowed  for.  The  process  does  not  abate  by  death  of  a 
party.  Gen.  Stat.  18G0,  c.  45.  By  the  Public  Acts,  1870,  No.  69,  provision  is 
made  for  eflJecting  partition  of  the  waters  of  any  mineral  or  medicinal  spring 
which  is  owned  by  joint-tenants,  tenants  in  common,  or  coparnters,  in  such 
manner  as  commissioners  shall  judge  just  and  equitable. 

In  Rhode  Island,  joint-tenants,  tenants  in  common,  and  coparceners,  actually 
seised  of  an  estate  for  life  or  years,  may  have  partition  by  writ  of  partition.  If 
the  premises  are  situate  in  two  or  more  counties,  partition  may  be  sued  for  by 
action  at  law,  or  b}'  bill  in  equity  in  eitlier  county.  In  suits  in  equity  the  Su- 
preme Court  may,  in  their  discretion,  upon  motion  of  any  party,  order  the  whole 
or  any  portion  of  the  premises  to  be  sold  at  auction  by  commissioners.  In  actions 
at  law,  the  court  appoint  one  or  more  persons  to  make  pa'-tition.  The  report  of 
the  commissioners  and  the  judgment  of  the  court  thereon  is  recorded  in  the 
office  of  the  clerk  of  the  town.  Rev.  Stat.  1857,  c.  208.  Partition  may  be  made 
at  law  by  metes  and  bounds,  or  in  equity  by  sale  and  division  of  proceeds,  all 
persons  in  interest  being  made  parties,  and  their  titles  set  forth,  the  court  ap- 
pointing persons  to  represent  those  having  interests  who  are  not  in  being.  Laws, 
1866.  Partition  in  ordinary  cases  may  be  effected  upon  petition,  wherein  are 
set  forth  tlie  owners'  names  and  the  titles  by  which  they  claim,  and  creditors 
may,  at  the  petitioner's  election,  be  made  parties  to  such  proceedings.  The 
mode  of  proceeding  in  the  matter  of  pleas  and  answers  is  prescribed  in  the  act. 
Upon  tlie  trial  of  an  issue,  the  court  renders  judgment,  and  directs  partition  to 
be  made  by  referees ;  and  if  by  their  report  it  should  appear  that  a  partition 
would  be  injurious,  the  court  may  direct  a  sale  of  the  whole  or  a  part  of  the 
estate,  and  a  partition  of  the  rest.  A  judgment  upon  the  final  report  of  the 
referees,  affirming  the  same,  becomes  a  final  and  effectual  partition.  Rev.  Stat. 
1866,  p.  538. 

In  Connecticut,  the  Superior  Court,  as  a  court  of  equity,  may,  upon  tlie  peti- 
tion of  any  person  interested,  order  partition  of  any  estate  held  in  joint-tenancy, 
tenancy  in  common,  or  coparcenary ;  and  may  appoint  a  committee  for  that 
purpose.  When  in  the  opinion  of  the  court  a  sale  will  better  promote  the  in- 
terest of  all  parties,  they  may  appoint  a  committee  to  make  a  sale.  The 
decree  for  partition  and  the  proceedings  under  it  must  be  recorded  in  the 
records  of  lands  in  the  town  where  the  estate  lies.  Gen.  Stat.  1866,  pp.  398, 
416 ;    Gen.  Stat.  1875,  p.  414,  §  8,  p.  480. 


CH.  XIII.  §  7.]  JOINT   ESTATES.  693 

111  Nebraska ,  partition  is  made  by  commissioners  among  heirs,  and  tliese  are 
appointed  by  tlie  Probate  Court.  And  tlie  court  may  assign  the  wliole  to  one  of 
them,  on  payment  by  him  to  tlie  others  of  the  vahie  of  tlieir  sliares.  Kev.  Stat. 
1866,  p.  119.  But  this  can  be  done  only  when  the  estate  cannot  be  divided  with- 
out prejudice  or  inconvenience.     Gen.  Stat.  1873,  c.  17,  §§  1292,  297. 

In  Netv  York,  any  joint-tenant,  or  tenant  in  common,  having  an  estate  of 
inheritance  for  life  or  for  years,  may  petition  the  Supreme  Court,  or  tlie  court 
of  the  county,  or  the  mayor's  court  of  the  city,  for  partition,  or,  if  necessary, 
for  a  sale  of  the  land.  The  petition  describes  tlie  premises  and  the  rights  and 
titles  of  parties,  and  is  verified  by  affidavit.  Every  person  interested  may  be 
made  a  part}-.  In  case  any  party  or  his  interest  is  unknown,  uncertain,  or  con- 
tingent, or  the  ownership  depends  upon  an  executory  devise,  or  the  remainder 
is  contingent,  it  must  be  so  stated.  Creditors  having  liens  need  not  be  made 
parties.  Such  liens  attach  to  the  part  set  off  to  the  debtor.  The  petitioner  may 
make  persons  having  specific  liens  parties  to  the  petition.  Notice  of  the  petition 
having  been  given,  any  party  interested  may  appear  and  answer,  and  any 
person  not  named  as  a  party  in  the  petition  may  be  admitted  to  appear.  All 
issues  are  tried  as  in  personal  actions.  The  court  appoint  three  commissioners 
to  make  the  division.  The  final  judgment  upon  their  report  is  conclusive  on 
all  parties  named  therein,  and  all  persons  interested,  who  may  be  unknown,  to 
whom  notice  was  given  by  publication.  But  the  judgment  does  not  affect  per- 
sons having  claims  to  the  ichole  of  the  premises,  as  tenants  in  dower,  by  tiie 
curtesy,  or  for  life.  If  the  commissioners  report  that  the  land  cannot  be  divided 
without  prejudice  to  the  owners,  the  court  may  order  a  sale  on  such  security  as 
they  shall  prescribe.  Before  the  order  of  sale,  all  holders  of  specific  liens  are  to 
be  made  parties,  and  their  incumbrances  are  first  satisfied  from  the  proceeds  of 
the  sale,  and  the  residue  is  then  distributed.  The  court  in  their  discretion  may 
order  any  estate  in  dower,  by  the  curtesy,  or  for  life,  to  be  sold,  or  otherwise 
excepted  from  the  sale  ;  and  in  case  of  the  sale  of  such  interest,  the  court  directs 
the  pa3-ment  of  such  sum  in  gross  to  the  party,  if  he  formally  assent ;  otherwise 
an  investment  is  made  for  his  benefit,  in  amount  proportioned  to  his  inter- 
est. No  commissioner  or  guardian  to  an  infant  party  *  can  be  a  pur-  [*437] 
chaser.  The  commissioners  execute  conveyances,  which  are  recorded, 
and  which  are  a  bar  to  all  parties  named,  and  all  unknown,  if  the  required 
notice  has  been  given,  and  to  all  having  liens  on  any  undivided  share.  The  late 
court  of  chancery  had  the  same  j^ower,  upon  petition  or  bill,  to  decree  partitions 
and  sales,  as  is  given  to  the  common-law  courts.  The  Supreme  C'ourt  may 
appoint  a  receiver  of  the  rents  or  profits,  pending  proceedings  for  partition. 
Acts,  1863;  Hev.  Stat.  5th  ed.  vol.  3,  pt.  3,  tit.  3,  c.  5,  pp.  603-620;  1863,  vol. 
2,  pp.  326-342. 

In  Wisconsin,  one  or  more  tenants  in  common,  or  coparcenary,  or  joint-ten- 
ants, may  have  partition  by  complaint  in  the  circuit  court  for  the  county  wliere 
the  land  lies.  The  action  may  be  maintained  by  any  such  person  who  has  an 
estate  in  possession,  but  not  by  one  wiio  has  only  an  estate  in  remainder  or 
reversion.  The  manner  of  procedure  is  tlie  same  as  that  in  New  York.  Kev. 
Stat.  1858,  c.  142. 

In  Michiyan,  joint-tenants,  and  tenants  in  common,  may  have  partition  by 
a  suit  in  the  circuit  court  for  the  county  by  bill  in  equity.  The  suit  may  be 
maintained  by  any  one  who  has  an  estate  in  possession,  but  not  by  one  who  has 
only  an  estate  in  remainder  or  reversion.     If  the  bill  is  taken  as  confessed  by 


694  LAW  OF  EEAL  PROPERTY.  [BOOK  I.. 

any  of  the  defendants,  the  court  order  a  reference  to  a  Master  to  take  proof  of 
the  title  of  tlie  complainants.  Upon  making  a  decree  for  partition,  reference  is 
made  to  a  commissioner  to  inquire  whether  the  premises  can  be  divided  without 
prejudice.  Partition  is  made  by  three  commissioners,  who  proceed  in  the  same 
manner  as  the  commissioners  under  tlie  statutes  of  New  York  ;  and  the  bill  in 
equity  is  in  ail  other  respects  conducted  in  the  same  manner  as  tlie  suit  by  peti- 
tion in  that  State.  Comp.  Laws,  1857,  vol.  2,  c.  135.  Persons  having  contin- 
gent interests  which  become  certain  after  the  filing  of  the  bill  may  become 
parties.     Laws,  1867.     Comp.  Laws,  1871,  vol.  2,  p.  196. 

Li  Minnesota,  joiufrtenants,  and  tenants  in  common,  having  an  estate  of  inher- 
itance, for  life  or  for  years,  may  have  partition  by  an  action  in  the  district  court 
of  the  proper  county  by  complaint.  After  notice,  if  it  be  alleged  in  the  com- 
plaint, and  established  by  proof  that  partition  cannot  be  made  without  prejudice 
to  the  owner,  the  court  order  a  sale,  and  for  that  purpose  appoint  one  or  more 
referees  ;  otherwise  a  partition  is  ordered  to  be  made  by  three  referees.  The 
judgment  upon  their  report  is  conclusive  upon  all  parties  named  or  interested 
who  have  been  notified  as  required  ;  but  it  does  not  affect  the  claims  of  tenants 
in  dower,  by  the  curtesy,  or  for  life,  to  the  ichole  of  the  property.  If  there  are 
general  liens  upon  the  property,  the  court  order  a  reference  to  ascertain  thQ 
amount  and  priority  of  the  same ;  and  all  liens  are  satisfied  before  any  distri- 
bution to  the  part-owner.  If  the  tenants  do  not  consent  to  receive  a  sum  in 
gross,  the  court  order  a  just  proportion  to  be  invested  for  their  benefit.  Tlie 
sale  is  at  auction  in  the  same  manner  as  on  execution,  and  the  conveyances  are 
executed  by  the  referees  and  recorded  in  the  county  where  situated.  Comp. 
Stat.  1859,  c.  65.  And  the  court  may  authorize  the  sale  of  all,  or  only  a  part,  of 
the  lands.     Gen.  Laws,  ISOi  ;  Stat.  1873,  vol.  2,  c.  43,  tit.  2. 

In  Illinois,  partition  between  joint-tenants,  tenants  in  common,  or  in  coparce- 
nary, is  made  by  petition  to  the  circuit  court  of  the  county,  describing  the  prem- 
ises, and  all  persons  having  a  vested  or  contingent  interest  therein,  and  verified 
by  affidavit.  All  persons  interested,  in  possession  or  otherwise,  or  entitled  to 
dower  in  the  premises,  must  be  made  parties  and  notified  by  summons, 
[*438]  or,  if  absent,  *  by  pubhcation.  New  parties  may  be  admitted  by  way  of 
interpleader.  The  court  appoint  three  commissioners  to  make  partition, 
or,  if  they  find  that  this  cannot  be  done  without  prejudice,  to  sell  the  same  by 
order  of  court,  and  execute  conveyances,  which  shall  operate  as  a  bar  against  all 
owners  and  all  persons  claiming  under  them.  Comp.  Stat.  1858,  vol.  1,  p.  160; 
Rev.  Stat.  1874,  c.  106. 

In  Indiana,  joint-tenants,  tenants  in  common,  or  coparcenary,  may  have  par- 
tition by  applying  to  the  circuit  court  of  tlie  county  by  petition.  If  it  appear 
to  the  court  that  partition  ougiit  to  be  made,  the  court  award  an  interlocutory 
judgment  to  this  effect,  and  appoint  three  commissioners  to  make  partition. 
When  the  premises  cannot  be  divided  without  damage  to  the  owners,  the  court 
may  order  tiie  whole  or  a  part  to  be  sold  at  public  or  private  sale.  The  com- 
missioners execute  conveyances  whicli  are  as  effectual  as  if  executed  by  the 
owners  tliemselves.  On  llie  death  of  a  party,  the  proceedings  do  not  abate  if  his 
heirs  are  made  parties.  Upon  showing  sufficient  cause,  any  person  not  served 
with  summons  may  open  the  proceedings  within  one  year,  and  also  any  person 
of  unsound  mind,  or  any  infant  whose  guardian  did  not  attend  and  approve  such 
partition,  may,  within  one  year  after  the  removal  of  his  disability,  have  a  review 
of  such  partition.  Rev.  Slat.  1852,  vol.  2,  p.  329,  c.  13;  and  see  Acts,  1869,  c. 
101 ;  Sup.  Rev.  St.  1870,  p.  363. 


CH.  XIII.  §  7.]  JOINT   ESTATES.  695 

In  Ohio,  joint-tenants,  tenants  in  common,  or  in  coparcenary,  may  have  par- 
tition by  applying  by  petition  to  tlie  court  of  common  pleas  for  the  county,  or, 
where  the  premises  are  situate  in  two  or  more  counties,  to  the  Supreme  Court  held 
for  either  of  the  counties.  The  court  issue  a  writ  of  partition  to  the  sheriff  of 
the  county,  directing  him  to  make  partition  by  the  oaths  of  three  freeholders 
named  by  the  court.  If  the  freeholders  are  of  opinion  that  the  premises  cannot 
be  divided  according  to  the  writ  without  injury  thereto,  they  return  a  just  valua- 
tion of  such  estate  to  the  court ;  and  if  one  or  more  of  the  parties  elect  to  take 
the  land  at  the  appraisement,  the  same  are  adjudged  to  him  or  them,  and,  on 
payment  of  a  proper  proportion  of  the  appi'aised  value,  the  sheriff  executes  tlie 
conveyances.  Otherwise  the  court  order  a  sale  by  the  sheriff,  who  executes  a 
deed  of  the  estate.  A  widow  entitled  to  dower  in  the  estate  must  be  made  a 
party.  Guardians  of  minor  heirs,  and  guardians  of  idiots  and  insane  persons, 
may  act  in  their  behalf  in  any  partition.  Eev.  Stat.  1860,  c.  81,  sup. ;  Eev, 
Stat.  1868,  c.  65. 

In  Pennsylvania,  the  Supreme  Court  and  the  county  courts  of  common  pleas 
grant  writs  of  partition  at  the  suit  of  joint-tenants,  tenants  in  common,  and  co- 
parceners, by  an  inquest  of  seven  men  or  a  commission  of  three  men.  When 
the  inquest,  who  are  directed  to  make  such  partition,  are  of  opinion  that  the 
lands  cannot  be  divided  without  prejudice  to  the  whole,  they  shall  return  to  the 
court  an  appraisement ;  whereupon  the  court  may  adjudge  the  same  to  one  or 
more  of  the  parties  who  may  elect  to  take  it  at  the  valuation,  and  the  sheriff 
shall  execute  the  deed,  which  is  to  be  recorded  in  the  registry  of  deeds.  In  case 
none  of  the  parties  agree  to  take  the  land,  it  is  sold  by  the  sheriff  at  public  auc- 
tion. Where  partition  is  made  upon  default  of  any  party,  he  may,  for  good 
cause  shown,  obtain  a  reversal  within  a  year  thereafter.  Whep  equal  partition 
cannot  be  made  without  prejudice  to  the  whole,  the  inquest  shall  return  a  just 
valuation  of  the  lands  and  tenements  ;  and  if  one  or  more  of  the  parties  shall 
elect  to  take  the  same  at  the  appraised  value,  the  court  shall  adjudge  the  same 
to  him  or  them  on  payment  to  the  other  parties  of  their  proportions  of  the  ap- 
praised value ;  whereupon  the  sheriff  executes  conveyances  to  the  party  or 
parties  making  such  election,  subject  to  a  lien  in  favor  of  the  others  for  the  pay- 
ment of  their  shares.  In  case  none  of  the  parties  elect  to  take  the  land,  the 
court  may  order  a  sale  at  public  auction  ;  and  the  sheriff  is  empowered  to  exe- 
cute deeds  to  the  purchasers.  The  sheriff's  inquisition  and  all  orders  of  court 
in  relation  to  partition  are  recorded.  Purdon,  Dig.  1861,  pp.  770-775,  1872, 
pp.  1112-1119  ;  Laws,  1874,  p.  156. 

*  In  New  Jersey,  a  coparcener,  joint-tenant,  or  tenant  in  common,  may  [*439] 
make  application  for  partition  to  the  Suf>reme  Court,  or  circuit  court,  or 
court  of  common  pleas  for  the  county.  The  court  appoints  three  commissioners 
to  divide  the  land  into  a  definite  number  of  shares.  The  shares  are  numbered, 
and  an  allotment  made  by  ballot,  at  which,  on  the  application  of  any  party,  a 
judge  or  justice  shall  attend.  The  proceedings  are  recorded  in  the  clerk's  office, 
and  are  as  effectua'  to  make  a  partition  as  if  made  on  writs  of  partition  at  com- 
mon law.  Where  one  or  more  of  the  joint-tenants,  &c.,  are  minors,  the  orphans' 
court  may  order  partition. 

Any  lien  upon  the  undivided  estate  of  any  owner  becomes  a  lien  only  on  the 
share  allotted  to  such  owner.  If  a  partition  would  be  injurious,  the  court  may 
order  the  commissioners  to  sell  the  whole  at  auction,  and  execute  conveyances. 
This  act  does  not  extend  to  the  partitioning  of  lands  held  in  common  by  the 


696  LAW    OP   REAL   PROPERTY.  [bOOK   I. 

general  proprietors  of  the  eastern  or  western  divisions  of  the  State.  Joint-ten- 
ants, and  tenants  in  common,  may  also  be  compelled  to  make  partition,  like 
coparceners  at  common  law,  by  writ  of  partition  in  the  court  of  chancery.  A 
part  of  the  lands  may  be  sold,  and  tiie  remainder  divided,  when  the  whole  can- 
not be  divided  without  prejudice.  There  may  be  partition  among  parties  hold- 
ing in  reversion  or  remainder,  by  consent  of  the  particular  tenants  ;  or  if  partition 
cannot  be  made,  the  premises  may  be  sold,  and  the  particular  tenants  paid  tiieir 
proportion  of  the  proceeds.  Kixon,  Dig.  1855,  pp.  572-583 ;  Laws,  1858,  c.  50, 
and  c.  "223 ;  Rev.  Stat.  1875,  pp.  555-573. 

Li  Vircjinia,  tenants  in  common,  joint-tenants,  and  coparceners,  are  compellable 
to  make  partition,  and  the  court  of  equity  of  the  county  or  corporation,  wherein 
the  estate  or  any  part  thereof  is  situate,  has  jurisdiction  for  such  purpose. 
When  partition  cannot  be  conveniently  made,  the  entire  estate  may  be  allotted 
to  any  party  who  will  accept  the  same,  and  compensate  the  other  parties  in  in- 
terest tlierefor ;  or  if  the  interest  of  the  parties  will  be  promoted  tliereby,  the 
court  may  order  a  sale  of  the  entire  estate,  or  an  allotment  of  part  and  sale  of 
the  residue,  and  make  distribution  of  the  proceeds  of  sale.  Any  two  or  more 
of  the  parties,  if  they  so  elect,  may  have  their  shares  laid  off  together.  If  the 
name  or  share  of  any  person  interested  be  unknown,  so  much  as  is  known  in 
relation  thereto  must  be  stated  in  the  bill.  Any  lessee  of  lauds  thus  divided  or 
sold  still  holds  the  same  of  him  to  whom  such  land  is  allotted  or  sold.  Code, 
1849,  tit.  34,  c.  124,  p.  52-5,  §§  1-5;  Code,  1873,  p.  920,  §  1-5. 

In  Mississippi,  application  for  partition  is  made  to  the  coui'ts  of  chancery  by 
petition,  and  partition  is  made  by  these  courts  by  allotment  in  the  same  manner 
as  in  New  Jersey.     Rev.  Code,  1857,  pp.  310-320  ;  Rev.  Code,  1871,  c.  26. 

In  Alabama,  partition  is  made  in  the  same  manner,  on  application  to  the  pro- 
bate court.  Code,  1867,  §§  8105,  3119. 
[*440]  *In  6'eo)5'ia,  joint-tenants,  tenants  in  common,  and  coparceners,  may 
apply  to  the  superior  court  of  tlie  county  for  a  writ  of  partition.  Tiie 
writ  issues  to  five  partitioners,  who  proceed  to  make  partition  ;  which  being  made, 
the  court  give  final  judgment  which  concludes  all  parties.  Witliin  one  year 
after  such  judgment,  or,  in  case  of  disability,  within  one  year  after  its  removal, 
a  party  interested  may  have  the  partition  set  aside  for  good  cause  sliown ;  when 
it  is  shown  to  the  court  tliat  a  division  cannot  be  made  witiiout  prejudice  to  the 
whole,  they  may  order  a  sale  thereof  by  persons  appointed,  wlio  are  to  make 
conveyances  binding  on  all  parties.  Cobb,  New  Dig.  1851,  vol.  1,  p.  581 ;  Code, 
1873,  pp.  711-715. 

In  Arkansas,  partition  between  joint-tenants,  tenants  in  common,  and  co- 
parceners, is  made  by  petition  to  the  circuit  court  for  tlie  county.  Partition  is 
made  by  commissioners,  or,  if  this  cannot  be  done  without  prejudice  to  the  own- 
ers, the  premises  are  ordered  to  be  sold  at  auction,  when  the  convej^ances  are 
executed  by  tlie  commissioners  and  recorded.  Partition  or  sale  is  not  to  be 
made  contrary  to  the  will  of  a  testator.     Ark.  Dig.  1858,  c.  122. 

In  K'-ntiickij,  land  held  by  joint-tenants,  tenants  in  common,  coparceners,  or 
devisees,  may  be  divided  by  commissioners  appointed  by  the  county  court. 
The  deeds  of  partition  are  executed  by  the  commissioners  and  recorded.  Rev. 
Stat.  1860,  c.  57.  And  if  partition  would  be  injurious,  the  court  on  petition 
may  order  sale.  Sup.  Rev.  Stat.  1866,  p.  751.  Joint-tenants  may  be  compelled 
to  make  partition  ;  and  if  a  joint-tenant  dies,  his  part  descends  to  heirs,  &c.,  sub- 
ject to  debts,  dower,  curtesy,  and  distribution.     Gen.  Stat.  1873,  c.  63. 


CH.  XIII.  §  7.]  JOINT   ESTATES.  697 

In  Tennessee,  any  person  liaving  an  estate  in  common  or  otherwise  with  others 
may  have  partition  by  bill  or  petition  to  the  county,  circuit,  or  chancery  courts. 
The  bill  or  petition  must  set  forth  the  parties  and  their  titles,  with  a  description 
of  the  property.  Partition  is  made  by  three  commissioners,  and  their  report, 
when  confirmed  by  the  court,  vests  the  title  according  to  its  terms,  and  such 
partition  is  conclusive  upon  all  parties  named  and  parties  unknown  to  whom 
the  required  notice  has  been  given  by  publication,  but  does  not  affect  tlie  claim 
of  any  one  having  a  life-estate  in  the  whole  of  the  premises.  The  commissioners 
may  divide  the  land  into  unequal  shares,  and  charge  the  larger  shares  with  the 
sums  ne«essary  to  equalize  all  the  shares.  If  partition  cannot  be  made  without 
prejudice  to  the  whole,  the  court  may  order  a  sale  by  the  commissioners.  Thei-e 
is  a  lien  upon  the  land  for  the  purchase-money  till  the  whole  is  paid.  Incum- 
brances upon  the  estate  are  paid  before  distribution  of  the  proceeds  of  sale. 
The  court  may  order  an  investment  of  the  shares  of  any  persons  under  any 
disability.     Code,  1858,  §§  3262-3322. 

In  North  Carolina,  tenants  in  common  may  have  partition  on  petition  to  the 
superior  courts  and  courts  of  equity,  who  appoint  three  commissioners  to  make 
partition,  and  if  necessary  they  may  make  the  shares  unequal,  and  charge  the 
more  valuable  of  them  with  a  sum  of  monej'  sufl3.cient  to  make  an  equitable 
division.  Such  sums  cliarged  on  minors  are  not  payable  till  they  are  of  age, 
but  these  sums  bear  interest,  and  the  guardian  is  "to  pay  tliem  upon  receiving 
assets.  A  court  of  equity  may  order  a  sale  when  partition  would  be  injurious, 
and  also  when  the  land  of  joint-owners  is  required  for  public  uses.  The  pro- 
ceeds belonging  to  any  party  under  disability  must  be  invested  for  his  benefit. 
Rev.  Code,  1854,  c.  82 ;  Battles'  Revisal,  1873,  c.  84. 

*  In  South  Carolina,  joint-tenants,  tenants  in  common,  and  coparceners,  [*441] 
may  apply  to  the  court  of  common  pleas  for  a  writ  of  partition ;  where- 
upon the  court  issue  the  writ  to  three  or  more  persons,  commanding  them  to 
make  a  division  of  the  lands.  The  writ  may  also  issue  from  the  court  of  chan- 
cery. Stat,  at  Large,  vol.  3,  p.  708;  vol.  6,  p.  412.  Judges  of  probate  may 
direct  partition  where  there  is  no  dispute  as  to  title.  If  there  is,  it  is  referred  to 
the  circuit  court  for  adjudication.     Rev.  Stat.  1873,  c.  114. 

In  Florida,  joint  tenants,  tenants  in  common,  and  coparceners,  may  sue  for 
partition  of  real  estate  by  bill  or  petition,  on  the  equity  side  of  the  circuit  courts 
for  the  county  or  circuit  in  which  the  lands  lie.  The  court  appoint  three  com- 
missioners to  make  the  partition,  and  the  final  decree  upon  their  report  vests 
the  title  of  the  several  portions  in  the  respective  parties.  If  they  report  that 
the  premises  cannot  be  divided  without  prejudice  to  the  owners,  the  court  may 
order  a  sale  and  conveyance  by  the  commissioners.  Thompson,  Dig.  1847, 
p.  382. 

In  Texas,  it  is  simply  provided  that  any  part-owner  of  lands  may  compel  par- 
tition by  any  lawful  method,  and  that  no  such  partition  shall  prejudice  those 
entitled  to  reversions  or  remainders.  After  the  partition,  tenants  shall  hold  of 
the  landlords  to  whom  the  lands  are  allotted  in  severalty,  under  the  same  rents 
and  covenants,  and  the  landlords  shall  warrant  the  several  parts  unto  the  tenants, 
as  they  were  bound  by  leases  or  grants  respectively.  Oldham  &  White,  Dig. 
1859,  p.  340,  art.  1510;  Paschal's  Dig.  1866,  pp.  790-792. 

In  California,  joint-tenants,  and  tenants  in  common,  may  have  partition  on 
complaint,  setting  forth  the  parties  and  their  titles.  After  notice  and  the 
requisite  proofs  being  made  the  court  order  a  partition,  and  appoint  three  ref- 


698  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

erees  therefor.  The  judgment  of  the  court  confirming  their  partition  is  binding 
on  all  parties  named,  and  on  all  unknown  parties  to  whom  notice  has  been  given 
by  publication;  but  such  partition  does  not  affect  a  tenant  for  a  term  of  less  than 
ten  years  to  the  whole  of  the  property.  Wiien  it  is  alleged  in  tlie  complaint, 
and  established  by  proof,  that  a  partition  cannot  be  made  without  great  preju- 
dice, the  court  may  order  a  sale  of  the  land.  The  proceeds  of  the  sale  of  incum- 
bered property  are  applied  to  satisfy  the  liens  of  record  before  any  distribution 
is  made  to  the  part-owners.  The  sale  is  made  on  such  terms  as  the  court  direct, 
by  the  referees,  wlio  must  not  be  interested  in  any  purcliase.  If  the  sale  is  con- 
firmed, the  court  order  "the  referees  to  execute  conveyances,  and  take  securities 
pursuant  to  such  sale.  The  conveyance  must  be  recorded,  and  will  be  a  bar 
against  all  persons  named  as  parties  or  notified  by  publication.  Wood,  Dig. 
1858,  p.  202,  art.  999-1036.  Co-tenants  having  an  estate  for  life  or  years,  or  of 
inheritance,  may  have  a  process  for  partition,  or  for  sale  of  all  or  a  part  of  the 
lands  according  to  their  respective  interests  ;  and  no  one  having  an  unrecorded 
conveyance  need  be  made  a  party.     Acts,  1866  ;  Code,  1872,  c.  4,  §§  762-801. 

In  Missouri,  joint-tenants,  tenants  in  common,  and  coparceners,  may  petition 
the  circuit  court  of  the  county  for  a  partition  of  tlieir  lands,  and  for  a  sale  thereof, 
if  it  shall  appear  that  partition  cannot  be  made  without  prejudice  to  the  owners. 
The  petition  shall  describe  the  premises,  and  set  forth  the  titles  of  all  parties 
interested.  Every  person  having  any  vested  or  contingent  interest,  wliether  in 
possession  or  otherwise,  and  every  person  entitled  to  dower  in  tlie  premises,  may 
be  made  a  party.  The  court  appoint  commissioners  to  make  the  partition,  who 
are    authorized   at  their  discretion   to  divide  the  land  into  lots,  and  lay  out 

streets  and  alleys.  If  their  report  is  confirmed,  the  judgment  thereon  is 
[*442]  *  conclusive  on  all  parties  to  the  proceedings.     Tlie  report  and  judgment 

must  be  recorded.  If  tlie  commissioners  report  that  partition  is  imprac- 
ticable, the  court  may  order  a  sale  of  the  whole  premises  by  the  sheriff  of  the 
county,  who  makes  a  deed,  which  is  a  bar  against  all  parties  to  the  proceedings. 
In  the  distribution  of  the  proceeds,  if  any  of  the  parties  are  absent  from  the 
State,  or  unknown,  the  court  must  direct  their  shares  to  be  invested.  Any 
party  claiming  the  money  arising  from  such  sales  by  adverse  title,  on  petition  to 
the  circuit  court,  may  have  his  claim  tried,  and  the  court  will  order  payment  to 
the  party  entitled.  No  partition  or  sale  of  laijds  is  to  be  made  contrary  to  the 
intention  of  any  testator.  Guardians  are  authorized  to  act  for  their  wards  ia 
partition  of  lands,  and  the  court  may  appoint  a  guardian  for  any  minor  for  the 
purpose  of  such  division.     Gen.  Stat.  1866,  c.  152  ;  Stat.  1872,  c.  104. 

In  Iowa,  joint-owners  may  have  partition  of  real  estate  by  petition,  setting 
forth  the  interests  of  the  parties  and  describing  the  property.  When  all  the 
shares  of  the  parties  have  been  settled,  judgment  is  rendered  confirming  those 
shares,  and  directing  partition  accordingly.  The  court  appoint  referees  to  make 
the  partition.  If  it  appears  to  them  that  a  partition  cannot  be  made  without 
great  prejudice  to  the  owners,  and  the  court  are  satisfied  with  such  i-eport,  they 
may  order  a  sale  of  the  premises.  Provision  is  made  for  satisfying  incumbrances 
upon  the  estate.  The  court,  on  confirming  the  sale,  order  the  referees  to  execute 
conveyances,  which  on  being  recorded  are  valid  against  all  subsequent  pur- 
chasers, and  also  against  all  parties  to  the  proceedings.  When  the  referees  deem 
a  partition  proper,  the  court,  for  good  reasons  shown,  may  direct  particular  por- 
tions of  the  land  to  be  allotted  to  particular  individuals.  There  may  be  partition 
of  one  part,  and  a  sale  of  the  other.    The  partition,  when  confirmed  by  the  court, 


.        til 

\       pa 

X    pa 


CH.  XIII.  §  7.]  JOINT   ESTATES.  699 

is  conclusiA^e  on  all  parties  in  interest  who  have  been  notified  by  service  or  pub- 
lication. The  ascertained  share  of  any  absent  owner  shall  be  retained,  or  the 
proceeds  invested  for  his  benefit.  Code,  1851,  c.  117;  Revision,  1860,  c.  145 ; 
Code,  1873,  tit.  20,  c.  3. 

In  Kansas,  joint-tenants,  tenants  in  common,  and  coparceifers,  may  be  com- 
pelled to  make  or  suffer  partition,  on  petition  to  the  district  court  of  the  county, 
setting  forth  the  title  of  the  demandant,  and  describing  the  property  and  the 
other  parties  in  interest.  After  notice,  the  court  order  partition  by  writ  directed 
to  commissioners  to  make  partition  as  directed.  If  the  freeholders  are  of  opin- 
ion that  partition  cannot  be  made  without  injury  to  the  property,  they  are 
required  to  make  and  return  to  the  court  a  just  valuation  of  the  property. 
Whereupon,  if  tlie  court  approve  the  return,  and  any  of  the  parties  elect  to  take 
the  property'at  the  appraised  value,  the  same  is  adjudged  to  such  party  on  his 
paying  to  the  other  parties  their  proportion  of  the  appraised  value.  In  case  the 
parties  cannot  agree,  and  no  one  elects  to  take  the  estate,  the  court  may  order  a 
ale  at  auction  by  the  sheriff,  provided  the  sale  be  not  for  less  than  two-thirds 
e  appraised  value.  The  court  has  full  power  to  make  any  order  not  incon- 
sistent with  the  provisions  of  this  article  that  may  be  necessary  to  make  a  just 
and  equitable  partition  between  the  parties  and  to  secure  their  respective  rights. 
Comp.  Laws,  1862,  c.  162\;  Gen.  Stat.  1868,  c.  80,  §  16. 

In  Orecjon,  partition  may  be  had  between  tenants  in  common  by  suit  in  equity. 
If  it  is  alleged  in  the  complaint,  and  proved,  that  the  property  cannot  be  divided 
without  prejudice  to  the  owner,  the  court  may  order  a  sale,  and  for  that  purpose 
may  appoint  one  or  more  referees.  Otherwise,  upon  the  requisite  proof  being 
made,  it  shall  decree  partition  and  appoint  three  referees,  who  make  partition 
according  to  the  rights  of  the  parties  as  determined  by  tlie  court,  and  make 
report  of  their  proceedings  to  the  court.  Upon  tlie  report  being  confirmed,  a 
decree  is  made  that  such  partition  be  effectual  for  ever.  The  decree  does  not 
affect  tenants  for  years  or  for  life  of  the  whole  property.  When  a  sale  is  made, 
the  referees  are  required  to  report  their  proceedings  to  the  court ;  and  if  tlie  sale 
is  confirmed,  the  referees  are  ordered  to  execute  conveyances.  Code,  1862, 
pp.  109-119,  c.  5,  tit.  5 ;  Comp.  Laws,  1872,  c.  5,  pp.  198,  205. 

In  Delaware,  writs  for  the  partition  of  real  estate  held  in  joint-tenancy,  or 
tenancy  in  common,  may  be  issued  by  the  superior  court  of  the  county.  Upon 
judgment  in  partition,  the  court  may,  instead  of  awarding  a  writ  of  partition, 
appoint  five  judicious  and  impartial  freeholders  of  the  county  to  make  the  par- 
tition. Joint-tenants  and  tenants  in  common  may  also  petition  to  the  chancellor 
of  the  State  for  partition  ;  and  upon  decree  that  partition  shall  be  made,  lie  shall 
issue  a  commission  to  five  freeholders  for  this  purpose,  and  the  final  decree  upon 
their  return  is  conclusive  upon  all  the  parties.  If  from  tlie  return  of  the  com- 
missioners it  appears  that  no  partition  has  been  made,  the  chancellor  shall  order 
the  estate  to  be  sold  by  a  trustee  ;  and  such  sale  having  'been  approved,  the  trus- 
tee is  ordered  to  execute  a  deed  to  the  purchaser,  who  takes  all  the  interest  of 
the  joint-owners,  free  from  all  incumbrances,  except  such  as  may  be  paramount. 
Rev.  Code,  1852,  c.  86  ;  Rev.  Code,  1874,  c.  86. 

In  Maryland,  joint-tenants,  and  tenants  in  common,  may  have  partition  by  bill 
in  the  court  of  chancery,  or  on  the  equity  side  of  the  county  court.     If 
it  *  appears  to  the  court  that  a  sale  will  be  most  equitable  for  all  con-   [*443] 
cerned,  the  court  may  decree  a  sale  on  the  terms  and  conditions  usual  in 
sales  under  decrees  in  chancery  ;  and  if  it  appears  that  there  ought  to  be  a 


700  LAW  OF  REAL  PROPERTY.  [BOOK  I. 

specific  division  of  the  lands,  such  division  is  decreed  accordingly.  Code,  1860, 
p.  91,  art.  19,  §  99. 

In  West  Virgiuia,  tenants  in  common,  &c.,  may  have  partition,  the  circuit 
courts  of  the  counties  having  jurisdiction.  Any  two  or  more  may  have  their 
shares  set  off  togftlier.  If  the  estate  cannot  be  conveniently  divided,  the  court 
may  allot  it  entire  to  one,  he  paying  the  others  their  proportional  amounts,  or 
may  sell  it,  or  allot  a  part  and  sell  the  remainder.     Code,  1870,  c.  79. 

In  Nevada,  partition  is  made  by  courts  of  equity.  The  court  may  order  a 
sale  when  partition  cannot  be  made  without  prejudice,  or  may  appoint  three 
referees  to  make  partition,  and  in  case  of  sale  the  referees  execute  the  convey- 
ances. The  court  may  require  compensation  to  be  made  by  one  party  to  an- 
other to  equalize  partition.     Comp.  Laws,  1873,  pp.  373-382. 

In  Colorado,  the  petition  is  to  the  district  court  of  the  county  where  the  major 
part  of  the  premises  is  situate.  The  court  appoint  three  commissioners  to 
make  the  partition,  or,  if  that  would  be  prejudicial,  to  make  sale  of  the  premises. 
Courts  of  chancery  may  also  have  power  to  make  partition,  or  to  order  sale 
upon  a  bill  in  equity  for  partition.    Rev.  Stat.  1868,  c.  67. 


END  OP  VOL.   I. 


■V' 


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